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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


I 


^m^ms 


A  TREATISE 


LIEN   OF  MECHANICS 


MATERIAL   MEN, 

3n  IJcnnswluania, 

VriTH  THE 

ACTS  OF  ASSEMBLY  RELATING  THERETO, 

AXD  VARIOUS 

FORMS, 

BY 

HENRY  J.  SERGEANT,  Esq. 


Scconti  EBftioit. 


BY  E.  SPENCER  MILLER. 


IMULADKLl'inA: 
KAY  k  IIIIOTIIER,  LAW  BOOKSELLERS  AND  PUBLISHERS, 

17   &  19  SOUTH   FIFTH   STKKKT,   EAST  SIDE, 

HUHT    BTORIS   AnOVE   CHESTNUT. 

1850. 


^3%% 


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Untfrctl  according  to  the  Act  of  Congress,  in  the  year  One  ThouKand  Eiglit  Hundred  and 
Fifty-six,  by  E.  SPEXCEU  MILLEll,  in  the  Clerk's  onice  of  the  Wstrict  Court  for  tho 
Eastern  District  of  Pennsylvania. 


■WM.  S.  TOUXG,  PKISTEU. 


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kVIl      1,'  If    .!'./;){  M 


PEEFACE   TO   THE   SECOND   EDITION. 


I  HAVE  consented  to  edit  this  volume,  at  the  request 
of  the  Author,  and,  under  the  assurance,  that  a  n(f\v 
edition  was  needed  by  the  profession.  Since  the  ori- 
ginal treatise  was  published,  most  important  changes 
have  been  made  in  the  subject  of  Mechanics'  liens, 
both  by  legislation  and  decision;  and  it  is  no  longer 
safe  to  rely  upon  its  pages,  without  a  constant  refer- 
ence to  the  statute  books,  and  the  reports.  Such  a 
reference  has  now  become  so  burdensome,  that  any 
one,  who,  with  ordinary  care,  has  collected  the  cases 
and  Acts  of  Assembly,  under  proper  heads,  must  have 
conferred  a  favour.  I  have  endeavoured  to  do  this; 
and  only  claim  the  credit  of  a  desire  to  be  clear  and 
accurate. 

The  book  has  grown  under  my  hands,  as  I  advanced, 
to  a  greater  size  than  I  expected.  So  much  new 
matter  has  been  introduced,  that  but  little  of  the  text 
of  tlic  first  publication  remains.  It  is,  reall}",  a  difibr- 
ent  treatise;  not  because  of  any  desire  to  depart  from 
the  plan  gX  tha4irat>€di|fipii\  liiiL  lAiaJiM  the  si^bjoct, 


llfBli* 


IV  PREFACE. 

itself,  has  become  so  altered  aiul  extended,  that  it  re- 
quires a  new  consideration  and  a  new  arrangement. 

I  sincerely  hope,  that  this  \olume  may,  not  only, 
be  useful  to  tlie  profession,  but  lead  to  system  and 
harmony  in  the  decisions.  The  subject  of  which  it 
treats  is  now  involved  in  the  most  deplorable  confusion. 
The  desire  so  often,  and  so  clearly  expressed  by  the 
court  to  encourage  the  mechanic  to  file  his  own  claims, 
by  protecting  him  from  his  blunders,  has  led  to  such 
loose  and  discordant  judgment,  that  we  are  almost 
without  law  upon  many  of  its  most  important  topics. 
The  full  extent  of  the  difficulty  which  has  thus  arisen, 
can  only  appear,  when  the  cases  are  collated. 

AVe  can  see  no  reason  why  this  class  of  citizens 
should  be  indulged  at  the  expense  of  others.  Why  is 
the  mechanic  to  be  more  favoured  than  other  lien 
creditors?  The  reasoning  and  policy  of  the  law  are 
most  cogent  against  him.  His  lien  is  statutory  and 
extraordinary.  It  is  exparte;  more  entirely  so  than 
that  of  a  mortgagee,  whose  claim  is  liquidated,  only 
under  the  hand  of  the  debtor,  while  this  may  be  filed 
for  more  than  is  duo.  It  is  most  dangerous  in  its  re- 
lation back  to  a  period  not  easily  ascertained,  and  not 
appearing  of  record.  Such  claims  ought  to  be  held 
to  strict  construction,  by  every  principle  of  justice. 

But  is  it  indulgence  and  protection?  If  mechanics 
and  material  men  knew  their  own  interests,  they 
would  be  far  from  availing  themselves  of  their  so 


PREFACE.  V 

called  privilege.  If  the  sums  lost  by  the  false  eco- 
nomy which  risks  the  debt  to  save  a  fee  could  be 
ascertained,  they  would  be  startled  by  the  result.  A 
large  proportion  of  all  the  claims  filed  are  utterly 
worthless.  Only  one  who,  representing  his  client  be- 
fore an  Auditor,  appointed  to  distribute  the  proceeds  . 
of  a  sheriff's  sale,  has  seen  a  host  of  threatening  liens 
disappear,  under  the  plainest  requirements  of  the  law, 
can  judge  of  the  folly  of  such  a  course. 

I  am  doing  my  profession  no  favour  by  these  sug- 
gestions. It  reaps,  perhaps,  a  larger  income  under  the 
present  system,  than  it  v/ould,  were  the  remarks  which 
we  have  made  regarded.  The  mechanic  pa^'s  more 
to  support  bad  claims,  than  he  would  for  the  filing  of 
good  ones.  But  I  am  doing  the  law  a  service.  By 
deference  to  false  policies  it  has  been  perverted,  until 
titles  are  endangered,  confusion  encouraged,  courts 
delayed,  and  a  system  produced  which  is,  now,  about 
as  bad  as  it  can  be. 

Since  the  foregoing  preface  was  written,  a  letter  of 
some  interest  has  been  placed  in  my  hands,  containing 
the  result  of  investigation  made  by  the  writer,  now 
deceased,  at  the  request  of  the  person  to  whom  it  is 
addressed.  At  his  suggestion  I  add,  here,  the  larger 
part  of  its  contents.  I  have  not  been  able  to  verify 
them  by  reference  to  the  proper  volumes,  but  give 
them  in  the  sliape  in  which  they  come  to  me.  In  a 
subsequent  edition  I  hope  to  be  able  to  pursue  further 


VI  PREFACE. 

the  inquiries  to  which  they  lead.  If  they  head  been 
in  my  hands  at  an  earlier  period,  they  would  have 
served,  perhaps,  to  add  largely  to  the  first  chapter  of 
this  work,  which  is  their  proper  place. 

Philadelphia,  December  26th,  1849. 
Dear  Sir, — At  your  request  I  have  looked  in  the  French 
law  respecting  tlie  right  of  lien  -which  builders  and  material 
men  have  on  buildings  erected  by  them.  I  find  this  lien  ex- 
ists by  virtue  of  art.  2103,  of  the  Code  Civil,  §  4.  The  way 
to  secure  the  lien  is  peculiar;  the  owner  of  the  ground  is  re- 
quired to  apply  to  the  court  to  appoint  viewers  (experts)  who 
go  upon  the  ground  and  make  a  irrovh  verbal,  which  is  an  in- 
quisition of  office,  in  which  are  stated  all  the  circumstances 
and  state  of  the  ground  which  the  owner  intends  to  improve, 
and  also  of  the  proposed  improvement.  On  the  application 
of  the  owner  the  (expert)  viewer  comes  before  the  judge,  and 
in  the  presence  of  the  owner  makes  oath  that  the  facts  con- 
tained in  the  proces  verbal  arc  true.  The  proces  verbal  is 
then  filed  in  the  office  of  the  court,  before  whom  the  proceed- 
ings have  taken  place.  In  this  proceeding  it  is  unnecessary 
to  designate  the  persons  who  are  to  be  employed  in  making 
the  projected  improvements.  A  transcript  of  this  proces 
verbal  is  then  filed  in  the  lien  office,  (bureau  des  hypotheques) 
of  the  district  where  the  proposed  building  is  located. 

Though  this  proceeding  does  not  alone  create  a  lien,  yet 
it  is  indispensable  to  secure  the  workmen  and  material  men. 
When  this  is  regular,  they  may  with  safety  go  on  with  their 
work  and  furnish  materials. 

Within  six  months  after  the  work  has  been  completed,  either 
the  owner  or  any  of  the  creditors  may  apply  by  petition  to 
the  same  court,  and  another  viewer  is  named.  All  parties 
interested  must  be  notified  to  appear  at  a  certain  time  and 
place,  when  the  oath  is  to  be  tendered  to  the  viewer,  and  then. 


PREFACE.      ^  Vll 

if  any  good  reasons  exist,  he  may  be  challenged.  The  object 
of  this  second  vieTV  is  to  cause  the  works  to  be  received  juri- 
dically. The  viewer  then  goes  and  examines  the  work  that 
has  been  done,  the  materials  which  have  been  furnished,  and 
to  put  a  proper  value  on  them :  when  that  is  ascertained  by 
the  contract,  then  it  is  that  value ;  when  it  is  not  so  ascer- 
tained, then  he  estimates  the  work  or  materials  at  their  just 
value ;  the  bills  and  claims  of  each  being  attached  to  the  pro- 
ces  verbal.  The  expert  also  reports  as  to  the  goodness  and 
substantiality  of  the  works.  The  proces  verbal  is  then  de- 
posited in  the  office.  A  transcript  of  this  is  made  within  the 
term,  and  filed  in  the  lien  office.  The  lien  is  then  complete, 
and  its  efficacy  commences  with  filing  of  the  first  proces  ver- 
bal. See  Merlin  Rep.  Privilege,  art.  3,  §  4;  Dalloz,  Diet. 
Privilege,  art.  3,  §  4;  Le  Page,  Lois  des  Batimens,  partie  2, 
c.  1,  art.  4,  §  4. 

The  Civil  Code  of  Louisiana,  art.  3216,  contains  a  provision 
similar  to  that  of  the  French  Code. 

The  old  French  law  gave  a  lien  to  workmen  and  material 
men  over  all  other  creditors,  upon  the  equitable  principle  that 
they  who  had  furnished  materials  and  had  worked  the  common 
benefit  of  all  the  creditors,  ought  therefore  to  be  first  paid. 
Pothier,  Proc<3dure  Civile,  partie  4,  c.  2,  s.  3,  §  5. 

Both  the  old  and  the  new  French  law  give  a  lien  for  repairs 
as  well  as  for  new  buildings,  provided  the  law  have  been  com- 
plied with. 

Ilillyard's  Abridgment,  chap.  40,  contains  the  law  relating 
to  the  lien  of  Mechanics  and  material  men,  in  thirteen  difter- 
ent  states. 

P.  S. — Since  I  closed  this  letter,  I  find  the  Romans  gave  a 
lien  not  only  to  the  man  who  repaired  or  rebuilt  a  house,  but 
also  to  one  who  lent  money  for  that  purpose.  Nov.  !'7,  c. 
3;  Code  S,  18;  Code  8,  10,  2;  Dig.  20,  2,  1. 


PREFACE  TO  THE  FIRST  EDITION. 


It  is  hoped,  that  this  Treatise,  though  it  may  fail 
to  supply  the  want  of  a  work  on  the  subject  of  which 
it  treats,  may  serve  as  a  reference  to  the  decisions 
under  the  various  Acts  of  Assembly  relating  to  the 
Liens  of  Mechanics  and  Material  men.  It  embraces 
all  the  decisions  on  this  subject  to  which  the  writer 
has  had  access.  Being  doubtful,  how  far  the  Act  of 
June  1836  agreed  with,  or  supplied  the  prior  Acts  on 
the  subject,  he  has  thought  proper  to  introduce  the 
latter,  as  well  as  the  decisions  under  them.  It  will 
be  noticed,  however,  that  there  is  one  county,  at  least, 
embraced  by  some  of  the  prior  Acts,  and  to  which  the 
Act  of  1836  has  not  been  extended.  The  Acts  prior 
to  that  of  1836  will,  whether  supplied  by  that  Act  or 
not,  rule  a  great  number  of  cases  which  are  now  pend- 
ing, and  may  hereafter  arise, — the  proceedings  in 
which  commenced  before  that  Act  took  effect.  The 
Act  of  1803,  which  was  the  first  on  this  subject,  and 
repealed  by  that  of  1806,  is  also  given,  together  with 
various  Forms  of  Claims,  suitable  to  Mechanics  and 
Material  men,  in  conformity  to  the  provisions  of  the 
Act  of  1836. 

Philadelphia,  October,  1839. 


CONTENTS. 


PART   I. 

OF  THE  ORIGIN  AND  HISTORY,  CONSTRUCTION  AND  LOCAL  EXTENT 
OF  THE  LAW. 

CHAPTER   I. 

OF  THE  ORIGIN  AND  HISTORY  OF  THE  LAW,  -  -  -         33 

CHAPTER  II. 

OF  THE  CONSTRUCTION  OP  THE  LAW,  -  -  -  -  37 

CHAPTER  III. 

OF  THE  LOCAL  EXTENT  OF  THE  LAW, 48 

PAllT    II. 

OF  THE  CASES  TO  WHICH  THE  LAW  APPLIES. 

CHAPTER  I. 

V,  no  MAY  HAVE  THE  LIEN, 57 

CHAPTER  II. 

OF  THE  NATURE  OF  THE  DEBT  SECURED  BY  THE  LIEN,    -  -         83 

CHAPTER  III. 

WHO  MAV  PLEDGE  THE  CRKDIT  OF  THE  BUILDING,      -  -  125 


Xll  CONTENTS. 

PART   III. 

OF  THE  SUBJKCT  OF  THE  LIEN. 

CHAPTER  I. 

OF  THE  SUBJECT  OF  THE  LIEN,  AS  RESPECTS  ITS  NATURE,         -      131 

CHAPTER  II. 

OF  THE  SUBJECT  OF  THE  LIEN  IN  RESPECT  OF  ITS  EXTENT,  135 

CHAPTER  III. 

OF  THE  SUBJECT  OF  THE  LIEN  -WITH  REFERENCE  TO  THE 

ESTATE,  ...  -      150 


PART    IV. 

OF  THE  NATURE  AND  EFFECT  OF  THE  DISCHARGE  OP  THE  LIEN. 

CHAPTER  I. 

GENERAL  REMARKS  ON  THE  LIEN, 163 

CHAPTER  II. 

OF  THE  COMMENCEMENT  OF  THE  LIEN,  -  -  -  -      IGG 

CHAPTER  III. 

OF  THE  CONTINUANCE  OF  THE  LIEN,  -  -  .  .  172 

CHAPTER  IV. 

OF  THE  POSITION  AND  PRIORITY  OF  THE  LIEN,        -  -  -      184 

CHAPTER  V. 

OF  THE  DISCHARGE  OF  THE  LIEN, 188 


CONTENTS.  XIU 

PART   V. 

OF  THE  JURISDICTION  OF  COURTS  AND  PRACTICE  UNDER  THE  LAW. 

CHAPTER  I. 

GENERAL  REMARKS  UPON  THE  PROCEEDING,  ...      200 

CHAPTER  II. 

OF  THE  JURISDICTION  OF  COURTS, 202 

CHAPTER  III. 

OF  THE  PARTIES  TO  THE  PROCEEDING,  .  .  -  .      204 

CHAPTER  IV. 

OF  THE  CLAIM, 219 

CHAPTER  V. 

OF  JOINT,  APPORTIONED  CLAIMS, 249 

CHAPTER  VI. 

OF  STRIKING  OFF  CLAIMS, 260 

CHAPTER  VII. 

OF  THE  SCIRE  FACIAS  AND  ITS  SERVICE,  .  .  -  .      262 

CHAPTER  VIII. 

OF  CO.MPELLING  THE  CLAIMANT  TO  PROCEED,      -  -  -  267 


CHAPTER  IX. 


OF  COMING  IN  IJY  SUGGESTION, 
C 


270 


XIV  CONTENTS. 

CHAPTER  X. 

OF  THE  JUDGMENT  FOR  WANT  OF  AN  AFFIDAVIT  OF  DEFENCE,      272 

CHAPTER  XI. 

OP  THE  PLEADINGS, 274 

CHAPTER  XII. 

OF  THE  EVIDENCE, 279 

CHAPTER  XIII. 

LAW  AND  FACT, 295 

CHAPTER  XIV. 

OF  THE  VERDICT  AND  JUDGMENT, 297 

CHAPTER  XV. 

OF  THE  EXECUTION  AND  SALE,  AND  THEIR  EFFECT,    -  -  299 

CHAPTER  XVI. 

OF  THE  DISTRIBUTION  OF  THE  PROCEEDS,       -  -  -  .      304 

CHAPTER  XVII. 
OF  COSTS, 310 

CHAPTER  XVIII. 

OF  THE  PERSONAL  REMEDY, ,312 


CONTENTS.  XV 


APPENDIX. 

ACTS   OF  ASSEMBLY. 

Act  of  April  1,  1803,    ------  317 

Act  of  March  17,  1806,      ......  sig 

Act  of  March  28,  1808,            -----  319 

Act  of  Jaxttart  21,  1813,  -----.  321 

Act  of  March  1,  1815,  ---...  321 

Act  of  March  22,  1817,       --....  322 

Act  of  March  24,  1818,             .....  322 

Act  of  March  7,  1821,        -.-...  323 

Act  OP  April  11, 4825,              -            -            -            .            .  324 

Act  of  April  10,  1826,        ---...  324 

Act  OF  April  16,  1827,              -            -             -            .             .  325 

Act  of  February  4, 1830,  -            -            -            -            .            -  325 

Act  of  Jaxcart  28,  1831,          .....  325 

Act  of  March  30,  1831,      .--...  32(3 

Act  of  March  30,  1831,            -            -            .            .            .  327 
Act  of  May  7,  1832,            -            -            .            .            .            .328 

Act  of  April  11,  1835,               .....  329 

Act  of  April  13,  1835,       ......  329 

Act  of  April  1,  1836,  --....  330 

Act  of  Juxe  16,  1836,         ---...  330 

Act  of  April  4,  1837,  ---.--  342 

Act  of  April  16,  1838,       -.,...  343 

Act  of  April  16,  1840,              .....  344 

Act  of  April  28,  1840,        -            .            -            .            -            .  344 

Act  of  March  19,  1841,            -----  344 

Act  of  April  6,  1841,          ----..  345 

Act  of  February  10,  1842,        -----  345 

Act  of  March  25,  1842,      ------  346 

Act  of  March  30,  1842,             -----  346 

Act  of  August  2,  1842,       -            -                                    .            -  346 

Act  of  April  5,  1843,    ......  316 

Act  of  April  24,  1843,       --....  347 

Act  of  March  19,  1844,             -            -            .            .            .  3.17 

Act  of  May  C,  1844,            ......  347 

Act  op  April  IC,  1845,                          ■            -                        -  348 


XVI  CONTENTS. 

Act  OF  Marcu  11,  184G,      ------  348 

Act  OF  April  13,  184(;,               .            .            -            .            .  348 

Act  of  April  10,  1848,       .--.-.  349 

Act  of  January  23,  1849,          -            -            .            .             -  350 

Act  of  March  24,  1849,      ------  350 

Act  of  April  9,  1849,    -            -            -            -            -            -  351 

Act  of  April  25,  1850,       ------  351 

Act  of  April  2G,  1850,              -----  352 

Act  of  April  21,  1854,       ------  352 

Act  op  April  14,  1855,              -            .            -            .            .  353 

Act  of  April  26,  1855,       ------  353 

Act  of  April  21,  1856,              -----  354 

FORMS. 

I.  TuE  several  claims,              -            -            .            .            .  35,5 

II.  TuE  joint  apportioned  claim,     -            -            -            -  358 

III.  The  scire  facias,      ------  359 

IV.  Petition  under  the  23rd  section  of  the  Act  of  1836,  3G0 
V.  Form  of  the  rule  on  the  above  petition,  -            -            -  3C0 

VI.  Order  op  the  court  upon  the  ABOTE  petition,              -  3G1 

VII.  Plaintiff's  statement  under  said  order,  -            -            -  3G1 

VIII.  Defendant's  allegations  in  defence  under  said  order,  G31 

IX.  Entry  of  the  suggestion  under  the  19th  section,            -  3G2 

X.  The  levari  facias,         .            -            -                        .  3G2 


TABLE  OF  CASES. 


Abercrombie,  Holdship  v.,  89,  90,  92,  129,  137,  154. 

Allen,  Killingswortk  v.,  100,  245. 

Allison,  Presbyterian  Cturch  v.,  84,  111,  119,  176,  292,  295,  296. 

American  Fire  Ins.  Co.  v.  Pringle,  166,  168. 

Anshutz  V.  M'Clelland,  84,  90,  92,  151,  200,  210,  212,  216,  217,  297,  301, 

306,  308. 
Anshutz,  Walker  v.,  94. 

Armstrong  y.  Ware,  84,  101,  lOG,  109,  110,  296. 
Arthurs,  Morgan  v.,  84,  96. 
Atkinson  v.  Graves,  249. 

Babb  V.  Reed,  59,  70,  84. 

Baily,  M'Adam  v.,  217. 

Barclay's  Appeal,  85,  97,  99,  100,  245. 

Barker  v.  Maxwell,  205. 

Barnes,  Shaw  v.,  38,  232,  241,  245,  260,  298. 

Barnes  v.  Wright,  76,  77,  128,  151. 

Barras,  Ewing  v.,  38,  244,  276,  296. 

Bartlett  v.  Kingan,  176,  274. 

Bayer  r.Reeside,  226,  232,  236,  260,  274,  277,  298. 

Bayne  v.  Gaylord,  297. 

Beam  v.  First  Meth.  Ep.  Church,  81,  116. 

Bean,  Leib  ».,  169,  184,  297,  301. 

Bell,  Weakley  v.,  193. 

Bickel  V.  James,  90,  12«,  129,  136,  151,  160,  220,  303. 

Bilyeau,  Gaulc  v.,  85,  93,  100,  IC.l. 

Black's  Appeal,  224,  263. 

Bodcn,  Jobson  r.,  76,  80,  81. 


X  Vlll  TABLE  OF  CASES. 

Bolten,  Johns  r.,  12-J,  17:),  177,  189,  192. 

Borton  v.  JNIorris,  2()8. 

Bortoii  V.  Johns,  31,  37,  47,  CG,  6S,  123,  2G-1,  274,  27G,  277. 

Boudinot,  Carson  v.,  Gl. 

Boudinot,  Steinmetz  v.,  41,  GO,  Gl,  123,  125,  151,  220. 

Bournonville  v.  Goodall,  179,-  24G,  248,  278. 

Breban  v.  Evans,  293. 

Broom,  Hampton  v.,  84,  205,  210. 

Brown,  Kelly  v.,  246,  284,  285. 

Brown  V.  Smith,  13G. 

Bruner  r.  Sheik,  84,  130,  159,  213. 

Buchanan,  Kinsley  v.,  189,  192. 

Burling's  Estate,  38,  103. 

Burr,  Haines  i\,  239. 

Burt  V.  Kurt/.,  97,  182. 

Calhoun  v.  Mahon,  38,  235. 

Campbell  v.  Furness,  258. 

Campbell  v.  Scaife,  74, 125,  277,  280. 

Carson  v.  Boudinot,  Gl. 

Cattanach  v.  Ingersoll,  283. 

Chambers,  Woodruff  r.,  203. 

Chambers  v.  Yaruall,  171,  179,  24G,  27G. 

Chambers  v.  Young,  25C. 

Christine  v.  Manderson,  205,  210,  217,  275. 

Church  V.  Allison,  84,  111,  119,  176,  292,  295,  29G. 

Church,  Davis  v.,  86,  222,  246,  275. 

Church  V.  Davis,  41,  86,  284,  285. 

Church,  Dickinson  College  v.,  84,  284,  285,  287,  290,  292,  295. 

Church  v.  College,  84,  292. 

Church  r.  Griffith,  84,  87,  92,  93,  160. 

Cobb  V.  Traquair,  76,  77.  ' 

College,  Church  v.,  84,  292. 

Commissioners  The,  Wilson  v.,  8G. 

Conrad,  Harker  v.,  112,  119,  176,  193,  205,  241,  243,  295. 

Conrad,  Hopkins  v.,  197,  276. 

Controllers  The,  Williams  v.,  86. 

Cornelius  v.  Uhler,  180. 

Coryell,  Croskey  v.,  84,  121,  288. 

Creau  v.  M'Fee,  189. 


TABLE  OF  CASES.  XIX 

Croskey  i-.  Coryell,  84,  121,  288. 
Curry  v.  Spiak,  203. 

Dalton  Christman  and  Go's.  Appeal,  17G. 

Dalzell  V.  Lynch,  88. 

Davis,  Church  ».,  41,  8G,  284,  285. 

Davis  V.  Church,  86,  222,  24G,  275, 

Davis  V.  Farr,  255. 

Davis  V.  Stratton,  208,  213. 

Deal,  Matlack  v.,  200,  297,  310. 

Derrickson  v.  Nagle,  126. 

Dickinson  College  «:.  Church,  84,  284,  285,  287,  290,  292,  295, 

Donahoo  v,  Scott,  235,  246,  254,  266. 

Douglass,  Gorgas  vr,  214,  249,  301. 

Driesbach  v.  Keller,  38,  102,  104,  107,  172,  236,  237,  277,  2!?;5. 

Ducomb,  Lysle  «.,  184. 

Dugan,  Richebaugh  t\,  209,  235,  274,  278,  293. 

Duncan,  Phillips  v.,  173,  174,  175,  177, 

Eastwick,  M'Call  r.,  121,  124. 

Ellice  V.  Paul,  239. 

Elliott,  Hills  v.,  117,  120,  280,  284, 

Elliott,  Knorr  v.,  181. 

Evans  v.  Breban,  293. 

Evans,  Mitchell  v.,  84,  184. 

Evans  v.  Montgomery,  43,  160. 

Evans  v.  Springer,  41. 

Ewing  V.  Barras,  38,  244,  276,  296. 

Farr,  Davis  r.,  255. 

Ferguson  v.  VoUum,  298. 

First  Methodist  Episcopal  Ciiurch,  Beam  r.,  84,  146. 

Flanigan,  O'Xeil  v.,  175. 

Flanigau,  Yearsley  v.,  84,  176,  177,  183,  295. 

Freeman  v.  Gilpin,  115,  117. 

Fritz,  Noycs  v.,  271. 

Furnoss,  Campbell  r.,  258. 

Gabell  v.  Parry,  193,  277,  278. 
Gaul  r.  Bilyeau,  85,  93,  100,  ICl. 


XX  TABLE  OF  CASES. 

Gaylord,  Eaync  v.,  207. 

Gilbert  lliirs  Estate,  101,  17-1,  225,  212,  2D3. 

Gilbert,  M'JMulliu  v.,  2St. 

Gilpin,  Freeman  i\,  115,  117. 

Goodall,  liouruouville  v.,  170,  246,  248,  27?. 

Gorgas  v.  Douglass,  214,  240,  301. 

Grabam,  Hinchnian  v.,  110,  120,  2SG,  288. 

Graves,  Atkinson  r.,  249. 

Gray  v.  Hoklship,  84,  96. 

GrilUih,  Church  v.,  84,  87,  92,  93,  IGO. 

Hainea  v.  Burr,  230. 

Haley  v.  Prosser,  78,  122,  123,  124,  277. 

Hampton  v.  Broom,  84,  205,  210,  2G3,  264. 

Harbert,  Wetherill  v.,  188. 

Harker  v.  Conrad,  112,  110,  176,  103,  205,  241,  24.3,  205. 

Hauer's  Appeal,  306. 

Haviland  v.  Pratt,  40,  122,  124,  248,  282. 

Haworth  v.  Wallace,  92,  158,  277,  203. 

Hays  V.  Tryon,  41,  179,  207. 

Hern  v.  Hopkins,  167,  169,  170. 

Heron  v.  Robinson,  227. 

Herron,  McClelland  v.,  84,  02,  158. 

Hess,  Ridgway  v.,  274. 

Heugh,  Thorn  v.,  226,  227,  282. 

Hill  V.  M'Dowell,  236,  248,  274,  276,  281,  282. 

Hill,  Whelan  v.,  197. 

Hill  V.  Witmer,  100. 

Hillary  iJ.  Pollock,  236,  281,  205. 

Hills  V.  Elliott,  117,  120,  174,  280,  284. 

Hill's  Estate,  Gilbert  v.,  104,  174,  225,  242,  293. 

Hinchman  v.  Graham,  119,  120,  286,  288. 

Hiuchman  v.  Lybrand,  121,  124. 

Hoatz  V.  Patterson,  63,  78,  70,  84,  07,  127. 

Holden  v.  Winslow,  84,  112,  172,  177,  200,  29.3,  296,  297. 

Holdship  V.  Abercrombie,  89,  90,  92,  129,  137,  154. 

Holdship,  Gray  v.,  84,  96. 

Hoops  V.  Parsons,  170. 

Hoover,  Pennock  v.,  138,  167,  171,  179,  252,  251,  256,  257. 

Hopkins  v.  Conrad,  197,  276. 


TABLE  OF  CASES.  XXI 

Hopkins,  Hern  v.,  167,  169,  179. 

Howard  v.  M'Kowen,  262,  274.  ' 

Howett,  In  re,  99,  106. 

Hoy,  Matlack  f .,  41,  299. 

HuU,  Shaffer  v.,  121,  176,  238,  242. 

Hurley  v.  Lybrand,  113,  114. 

Ingersoll,  Cattanach  v.,  283. 

Jackson,  Keppel  v.,  84,  147,  241,  296,  307. 

James,  Bickel  ».,  90,  128,  129,  136,  151,  160,  220,  303. 

James,  Thomas  v.,  40,  185,  218. 

Jobson  V.  Boden,  76,  80,  84. 

Johns,  Bolton  v.,  34,  37,  47,  66,  68,  123,  264,  274,  276,  277. 

Johns  V.  Bolton,  124,  175,  177,  189,  192. 

Johns,  Sullivan  v.,  209,  214. 

Jones,  Savoy  and  Salter  v.,  78,  81,  128,  150,  151,  153,  154,  157,  158,  159, 

206. 
Jones  V.  Shawan,  34,  61,  63,  69,  94,  125,  127,  189,  209,  212,  215,  237,  263, 

281,  282,  293. 

Keller,  Drlesbach  v.,  38,  102,  104,  107,  172,  236,  237,  277,  295. 

Kelly  V.  Brown,  246,  284,  285. 

Keppel  V.  Jackson,  84,  147,  241,  296,  307. 

Keyser,  Springer  v.,  241,  243. 

Killiugsworth  v.  Allen,  100,  245. 

Kingan,  Bartlett  v.,  176,  274,  295. 

Kinsley  v.  Buchanan,  189,  192. 

Kline  v.  Lewis,  151,  197. 

Klingler,  Rogers  v.,  208,  220. 

Knabb's  Appeal,  38,  208,  218,  222,  224,  225,  233,  234,  242,  306. 

Knorr  v.  Elliott,  181. 

Kurtz,  Burt  v.,  97,  182. 

Landis'  Appeal,  99,  106. 

Large  v.  Millettc,  71. 

Lauck's  Appeal,  186. 

Lauman's  Appeal,  97,  100,  185,  218,  226,  216,  259. 

Learning,  Stiles  v.,  239. 

Lehman  v.  Thomas,  229,  260,  274. 

D  I 


XXll  TABLE  OF  CASES. 

Leib  V.  Bean,  IGO,  184,  297,  301. 

Lemar  v.  Miles,  87. 

Lewis,  Kline  v.,  151,  197. 

Lewis  V.  Morgan,  179,  190,  278. 

Lindall,  M'Donald  v.,  84,  140,  141,  149,  240,  2IG. 

Logan,  O'Brien  v.,  45,  124,  239,  277. 

Lybrand,  Hinehman  r.,  121,  124. 

Lybrand,  Hurley  v.,  113,  114. 

Lybrand,  Rowley  r.,  113. 

Lyman,  Young  v.,  124,  239,  292. 

Lynch,  Dalzell  i\,  88, 

Lyons  v.  M'Gufifey,  161,  184. 

Lysle  V.  Ducomb,  184. 

Mabon,  Calhoun  v.,  38,  235. 

Manderson,  Christine  v.,  205,  210,  217,  275. 

Masser,  Odd  Fellows'  Hall  v.,  199,  245,  280,  283,  291,  293. 

Matlack  i'.  Deal,  200,  297,  310. 

Matlack  v.  Hoy,  41,  299. 

Maxwell,  Barker  v.,  205. 

M'Adam  v.  Baily,  217. 

M'Call  V.  Eastwick,  121,  124. 

M'Clelland,  Anshutz  v.,  84,  90,  92,  151,  200,  210,  212,  216,  217,  297,  301, 

306,  308. 
M'CleUand  v.  Herron,  84,  92,  158. 
M'Donald  v.  Lindall,  84,  140,  141,  149,  240,  246. 
M'Dowell,  Hill  v.,  236,  248,  274,  276,  281,  282. 
M'Fee,  Crean  v.,  189. 
M'Gittigan,  Sweeney  v.,  182. 
M'Glaughlin  v.  Smith,  310. 
M-'Guffey,  Lyons  v.,  161,  184. 
M'llhenny  v.  Pratt,  138. 
M'Kowen,  Howard  v.,  262,  274. 
M'Mullin  I'.  Gilbert,  284. 
M'Namee  v.  Stoever,  254. 
Melchoir,  Wallace  v.,  119,  288. 
Miles,  Lemar  v.,  87. 
Miller  v.  Oliver,  106. 
Miller,  White  v.,  34,  132,  288. 
Millette,  Large  v.,  71. 


TABLE  OF  CASES.  XXIU 

MitcheU  r.  Evans,  84,  184. 
Montgomery,  Evans  v.,  43,  160. 
Montgomery,  Taylor  v.,  258. 
Moore,  Siner  v.,  159. 
Morgan  r.  Arthurs,  84,  96. 
Morgan,  Lewis  v.,  179,  190,  278. 
Morris,  Borton  v.,  268. 
Murray,  Simpson  v.,  244,  282. 
Mustin  V.  Vanhook,  41,  181. 

Nagle,  Derrickson  v.,  126. 

Nelson,  Smith  v.,  108,  109,  110,  296. 

NoU  V.  Swineford,  84,  212,  226,  231,  232,  263. 

Noyes  v.  Fritz,  27 L. 

O'Brien  v.  Logan,  45, 124,  239,  277. 

O'Connor  v.  Warner,  34,  45,  154,  160. 

Odd  Fellows'  Hall  v.  Masser,  199,  245,  280,  283,  291,  293. 

Oliver,  Miller  v.,  106. 

Olympic  Theatre,  case  of,  84,  96,  101,  103,  292. 

O'Neil  V.  Flanigan,  175. 

Parry,  Gabell  v.,  193,  277,  278. 

Parsons,  Hoops  v.,  179. 

Patterson,  Hoatz  v.,  63,  78,  79,  84,  97,  127. 

Paul,  Ellice  v.,  239. 

Pennock  v.  Hoover,  138,  167,  171,  179,  252,  254,  256,  257. 

Perigo  V.  Vanhorn,  106,  109,  296. 

Phillips  V.  Duncan,  173,  174,  177. 

PoUock,  Hillary  v.,  236,  281,  295. 

Pratt,  Haviland  v.,  40,  122,  124,  248,  282. 

Pratt,  M'llhenny  v.,  138. 

Presbyterian  Church  v.  Allison,  84,  111,  119,  176,  292,  295,  296. 

Pringle,  American  Fire  Insurance  Company  v.,  166,  168. 

Prosser,  Haley  t'.,  78,  122,  123,  124,  277. 

Reed,  Babb  v.,  59,  70,  84. 

Reed,  Richards  v.,  273. 

Recside,  Bayer  v.,  226,  232,  236,  260,  274,  277,  298. 

Rehrer  r.  Zeigler,  39,  231,  281. 


XXIV  TABLE  OF  CASES. 

llicliards  v.  Reed,  273. 

Richcbaugh  v.  Dugan,  209,  235,  274,  278,  2')3. 

Ridgway  v.  Hess,  27-L 

Rogers  v.  Klingler,  208,  220. 

Rowley  i'.  Lybrand,  113. 

Russell,  Washburn  v.,  84,  243,  244. 

Savoy  and  Salter  v.  Jones,  78,  81,  128,  150,  151,  153,  154,  157,  158,  159, 

206. 
Scaife,  Campbell  v.,  74,  125,  277,  280. 
Scott,  Donahoo  v.,  235,  246,  254,  266. 
Scott  V.  Senderling,  225. 
Senderling,  Scott  v.,  225. 
Shaffer  «.  Hull,  121,  176,  238,  242. 
Sharpknack  v.  Wilson,  182. 
Shaw  V.  Barnes,  38,  232,  241,  245,  260,  298. 
Shawan,  Jones  v.,  34,  61,  63,  69,  94,  125,  127,  189,  209,  212,  215,  237,  263, 

281,  282,  293. 
Sheik,  Bruner  v.,  84,  130,  159,  213. 
Simpson  v.  Murray,  244,  282. 
Siner  v.  Moore,  159. 
Smith,  Brown  v.,  136. 
Smith,  M'Glaughlin  w.,  310. 
Smith  V.  Nelson,  108,  109,  110,  296. 
Spink,  Curry  v.,  203. 
Springer,  Evans  r.,  41. 
Springer  v.  Keyser,  241,  243. 

Steinmetz  v.  Boudinot,  41,  GO,  61,  123,  125,  151,  220. 
Stetler,  Third  Associate  Reformed  Presbyterian  Church  v.,  199. 
Stevenson  v.  Stonehill,  59,  169. 
Stiles  V.  Leaming,  139. 
Stoever,  M'jSTamee  v.,  254. 
Stonehill,  Stevenson  v.,  59,  169. 
Stratton,  Davis  v.,  208,  213. 
Strecper,  Walter  v.,  268. 
Sullivan  v.  Johns,  209,  214. 
Sweeney  v.  M'Gittigan,  182. 
Swineford,  Noll  v.,  84,  212,  226,  232,  231,  263. 

Taylor  v.  Montgomery,  258. 
Tearney,  Williams  v.,  180,  190. 


TABLE  OF  CASES.  XXV 

Third  Associate  Reformed  Presbyterian  Churcli  v.  Stetler,  199. 

Thomas  v.  James,  40,  185,  218,  305. 

Thomas,  Lehmanu  v.,  229,  260,  274. 

Thompson's  case,  189. 

Thompson  v.  Ward,  249. 

Thorn  v.  Heugh,  226,  227,  282. 

Thorp,  Wademan  v.,  84,  96. 

Tilford  V.  AYallace,  37,  49,  296. 

Traquair,  Cobb  v.,  76,  77. 

Tryon,  Hays  v.,  41,  179,  207. 

Twelves  v.  Williams,  302. 

Uhler,  Cornelius  v.,  180. 

Yauderveers  case,  184. 
Vanhook,  Mustin  v.,  41,  181. 
Vanhorn,  Perigo  v.,  106,  109,  296. 
Vollum,  Fergusson  v.,  298. 

Wademan  v.  Thorp,  84,  96. 

Walker  v.  Anshutz,  94. 

Walker,  Witman  v.,  40,  68,  119,  127,  230,  233,  240. 

Wallace,  Ilaworth  v.,  92,  158,  277,  293. 

Wallace  v.  Melchoir,  119,  288. 

Wallace,  Tilford  v.,  37,  49,  296. 

Ward,  Thompson  v.,  249. 

Walter  v.  Streeper,  268. 

Ware,  Armstrong  v.,  84,  101,  lOG,  109,  110,  296. 

Warner,  O'Connor  v.,  34,  45,  154,  160. 

Washburn  v.  Kussell,  84,  243,  244. 

Weakley  v.  Boll,  193. 

Werth  V.  Werth,  84,  85,  100,  138,  147,  187,  302. 

Wctherill  v.  llarbert,  188. 

Whelan  v.  Hill,  197. 

White's  Appeal,  84,  92. 

White  V.  Miller,  34,  132,  288. 

Williams  v.  The  Controllers,  86. 

Williams  v.  Tearney,  180,  190. 

Williams,  Twelves  v.,  302. 

Wilson,  Sharpknack  v.,  182, 


XXVI  TABLE  OF  CASES. 

Wilson  V.  The  Commissioners,  8G. 

Winslow,  Holden  v.,  84,  112,  172,  1(7,  200,  2!)3,  29G,  207. 

Witman  v.  Walker,  40,  68,  119,  127,  230,  233,  240. 

Witmer,  Hill  r.,  190. 

Woodruff  V.  Chambers,  203. 

Wright,  Barnes  v.,  76,  77,  128,  151,  208,  263. 

Yarnall,  Chambers  r.,  171,  179,  246,  276. 
Yearsley  v.  Flanigan,  84,  176,  177,  183,  295. 
Young,  Chambers  r.,  256. 
Young  V.  Lyman,  124,  239,  292. 

Zeigler,  Rehrer  v.,  39,  231,  281. 


ERRATA 


Page  99,  note  2,  for  "Howell"  read  "Howett." 
Pages  161  and  184,  for  "M'Gaffey,"  read  '-'M'Guffey." 
Page  217,  5th  line,  instead  of  "  contract  was  made,  or  tlie  work  done,  or 
materials  furnished,"  read  "building  was  commenced." 
Page  219,  for  "Chapter  III"  read  Chapter  IV. 


PART  I. 


OF  THE  ORIGIN  AND  HISTORY,  CONSTRUCTION  AND  LOCAL 
EXTENT  OF  THE  LAW. 


CHAPTER  I. 

OF  THE  ORIGIN  AND  HISTORY  OF  THE  LAW. 

"  The  Acts  of  Assembly  giving  a  specific  lien  on 
buildings  for  work  done,  and  materials  furnished  for 
tliem,  established  a  system  for  which  no  precedent  ex- 
isted in  our  own  or  the  English  law.  The  only  pre- 
vious instance  of  a  character  at  all  similar,  is  to  be 
found  in  the  Act  of  1784,  relating  to  persons  employed 
in  building  and  repairing  vessels,  the  subject  matter 
of  which,  however,  differs,  in  some  obvious  points,  from 
that  of  the  Act  of  1806,  although  the  phraseology  of 
the  former  has  been  followed  in  some  passages."  ^ 

The  precise  history  of  the  movement  that  led  to 
the  passage  of  the  first  act  does  not  now  clearly 
appear.     Its  origin  must,  therefore,  be  doubtfully  ex- 

'  Explanatory  remarks  of  the  Commissioners  to  revise  the  civil  code. 

3 


34  OKIGIN  AND  HISTORY  OF  THE  LAW. 

plained  from  such  casual  remarks  as  we  can  glean  from 
the  cases.  "Our  legislature  for  almost  forty  years," 
says  Ch.  J.  Gibson,  in  the  year  1842,  "breathed  one 
uniform  spirit  of  kindness  to  the  operative."  "  The 
manifestation  of  its  former  kindness  is  visible  in  the 
enlargement  of  the  system  so  as  to  embrace  ships  and 
even  curbstones,  and  in  the  gradual  diffusion  of  it 
over  almost  the  whole  state."  ^ 

The  same  judge  remarks,  in  another  of  his  decisions; 
"It  was  the  frequency  of  loss  sustained  by  mechanics 
and  dealers,  in  consequence  of  the  employment"  of  the 
middleman  or  contractor  "which  first  induced  the 
legislature  to  give  them  a  lien  on  the  building."^ 

A  perfect  system  could  hardly  have  resulted,  at  once, 
from  such  an  effort.  "  It  is  not  surprising,  therefore," 
say  the  Commissioners,  whose  language  we  have  al- 
ready quoted,  "  that  defects  have  been  discovered  in 
the  acts  in  question,  nor  that  great  difficulties  have 
been  experienced  by  the  courts  and  the  bar,  in  giving 
effect  to  the  design  of  the  legislature."  ^ 

The  earlier  provisions  were,  indeed,  meager  and  un- 
satisfactory. As  the  judge  just  referred  to  remarks, 
in  one  of  his  decisions;  "  By  reason  of  the  novelty  of 
the  subject  it  happened  that  the  first  act  fell  short  of 
the  object."  ^  And  in  another,  "  The  adaptation  of  these 
lien  laws  was  imperfect,  and  they  worked  ill  for  the 
owner  at  first."  ^  In  the  earlier  Acts  the  requisitions 
as  to  the  form  of  the  claim  were  few  and  illy  con- 


1  O'Conner  v.  Warner,  4  W.  &  S.  226.  ^  Bolton  v.  Johns,  5  B.  150. 
^  Explanatory  remarks,  &c.  *  Jones  v.  Shavvan,  4  W.  &  S.  264. 
5  White  V.  Miller,  6  H.  54. 


ORIGIN  AND  HISTORY  OF  THE  LATT.  oO 

sidered,  tlie  nature  of  the  remedy  was  but  vaguely  in- 
dicated, the  mode  of  continuing  the  lien  was  doubtful, 
and  when  continued  it  remained  perpetual.  These  de- 
fects were  aided  from  time  to  time,  by  enactments, 
which,  however,  still  continued  to  lack  system  and  com- 
pleteness. But  the  Act  of  183G,  wdiich  was  at  length 
passed  almost  as  it  came  from  the  hands  of  the  com- 
missioners, left  but  little,  as  far  as  the  legislature  was 
concerned,  to  be  desired.  It  is,  with  its  supplements, 
the  foundation  of  the  present  system. 

There  have  been  two  periods  of  interest  in  the  his- 
tory of  the  law,  a  mention  of  which  we  do  not  feel 
at  liberty  to  omit,  even  in  this  brief  sketch. 

It  had  been  frequently  decided,  from  the  origin  of 
the  system,  that  the  lien  was  one  which,  without  re- 
ference, as  a  general  rule,  to  the  particular  estate  of 
the  person  in  possession,  bound  the  fee  simple  in  the 
land.  This  result  was  considered  important  for  the 
safety  of  the  mechanic,  and  clearly  within  the  design 
of  the  legislature.  By  an  Act  of  1840  these  decisions 
were  swept  away,  and  the  lien  restricted  to  the  estate 
of  the  person  in  possession  at  the  commencement  of 
the  building.  The  cases  to  which  we  shall  refer  here- 
after will  show  how  sensibly  this  revolution  was  felt 
in  the  system,  and  how  soon  it  led  to  grave  questions 
of  construction  and  constitutional  law. 

The  other  change  was  less  radical,  but  of  impor- 
tance. It  had  been  held  by  the  courts  that  the  per- 
son called  in  the  Act  the  contractor,  was  not  witbiii 
its  provisions,  and  could  not  file  a  claim.  Decision 
went  so  far,  at  length,  that  no  person  who  bad  made 


36  ORIGIN  AND  HISTORY  OF  THE  LAW. 

a  special  contract  could  obtain  the  lien.  These  cases, 
also,  were  rendered  nugatory  by  an  Act  of  1845,  and 
the  existence  of  a  special  contract  appears  to  be  no 
longer  in  the  way  of  a  claim. 

"  The  policy  of  the  system  has  been,  often  and  se- 
riously, questioned,  and  doubts  have  been,  frequently, 
expressed,  whether,  upon  the  whole,  it  works  well,  even 
for  those  for  whose  benefit  it  was  enacted,  since  it  tends 
to  clog  the  transfer  of  real  estate,  by  the  risk  in  which 
it  involves  purchasers  and  mortgagees.  The  example 
set  by  this  state,  however,  has  been  followed  in  some 
others,  and,  recently,  by  Congress,  in  relation  to  the 
District  of  Columbia,  by  the  adoption,  in  the  same 
words,  of  the  Acts  of  1806  and  1808.  Public  opinion, 
also,  seems  favourable  to  a  continuance  of  the  system, 
since  the  lien,  which,  by  the  Act  of  1806,  was  confined 
to  the  city  and  county  of  Philadelphia,  has,  by  suc- 
cessive Acts,  been  extended  to  thirty-nine  counties, 
besides  several  boroughs  or  towns." 

These  remarks  w^ere  made  in  1836.  Since  that 
period  many  other  counties  have  been  brought  within 
the  provisions  of  the  law,  which  extends,  now,  over 
by  far  the  larger  portion  of  the  state. 


CONSTRUCTION  6f /me/i^/  37 

ij'r'' 

CHAPTER  II.  ^ 

OF    THE    CONSTRUCTION   OF   THE    LAT\". 

It  will  appear,  from  what  has  been  already  said, 
that  the  remedy  given  by  these  Acts  is  novel  and  ex- 
traordinary, and  purely  statutory  in  its  character. 
This  consideration  has,  in  many  of  the  decisions, 
weighed  with  the  court  in  construing  their  provisions. 

Thus  in  a  case  of  comparatively  early  date,  the 
court  say:,  "A  lien  for  work  and  materials  on  the 
building  is  a  privilege  derived  entirely  from  statutory 
provision,  and  cannot  be  maintained  beyond  the  ex- 
tent of  the  grant  by  Act  of  Assembly."  ^  And  later, 
"A  mechanic's  lien  depends  on  no  principle  of  moral 
right,  but  on  positive  enactment,  of  which  it  is  the 
creature,  and  beyond  the  terms  of  which  it  cannot 
be  extended."^ 

But  these  dicta.,  must,  in  view  of  other  decisions,  be 
limited  to  those  aspects  of  the  question  of  construc- 
tion which  result  from  efforts  to  extend  its  application 
to  new  localities,  as  in  the  first  case,  or  to  new  debts, 
or  new  subjects. 

In  most  of  the  instances  in  which  the  necessity  of 
strict  compliance  with  the  requisitions  of  the  Acts, 
as  to  form  in  procedure,  has  been  the  point  before  the 
court,  its  language  has  been  very  different. 

'  Tilford  V.  Wallace,  3  W.  143.  ^  Bulton  v.  Johns,  5  B.  149. 


38  CONSTRUCTION  OF  THE  LAW. 

Thus,  in  -the  Court  of  Common  Pleas  of  the  County 
of  Philadelphia,  King,  J.,  said :  "  This  Act  of  Assem- 
bly ought  to  receive  a  liberal  construction  in  favour 
of  the  meritorious  class  of  citizens,  the  just  claims  of 
whose  industry  it  is  intended  to  secure."  ^ 

And  the  Supreme  Court,  in  later  years,  has  used  si- 
milar language:  "Accuracy  ought  to  be  carefully  at- 
tended to;  but  as  claims  are  frequently  filed  by  the 
material  men,  themselves,  it  would  lead  to  injustice  to 
hold,  that  every  mistake,  however  trifling,  should 
avoid  the  lien.  Only  such  as  are  calculated  to  mis- 
lead subsequent  purchasers  or  creditors  should  destroy 
the  claim.  The  object  which  the  legislature  has  in 
view  is  attained,  by  setting  forth  on  the  record  such 
matters  as  will  leave  no  reasonable  room  to  doubt  the 
particular  building  intended,  against  which  the  claim 
is  filed.  And,  for  this  purpose,  certainty  to  a  common 
intent  is  all  that  can  be  reasonably  required."  ^ 

In  other  decisions  we  find,  indeed,  a  little  more 
guard  and  measure  in  the  expression  of  the  court 
upon  this  point.  Thus,  Bell,  J.,  says  : — "It  has  been 
felt,  that  the  extraordinary  remedy  afforded  by  our 
laws  to  mechanics  and  material  men,  requires  to 
be  properly  guarded,  to  prevent  it  from  becoming 
a  source  of  unjust  annoyance  and  injury  to  those 
whose  property  is  liable  to  be  made  the  subject  of  its 
action.     It  has,  accordingly,  from  time  to  time,  at- 


1  Burling's  Est.,  1  Ash.  377. 

^  Ewiog  V.  Barras,  4  W.  &  S.  4G8.  See  also,  Shaw  v.  Barnes,  5 
B.  21.  Calhoun  v.  Mahon,  2  II.  58.  Knabb's  Ap.,  10  B.  IBS. 
Driesbach  v.  Keller,  7  B.  77. 


CONSTRUCTION  OF  THE  LAW.  39 

tracted  legislative  attention,  until  the  fruit  of  former 
experience  was  embodied  in  the  Act  of  the  16th  of 
June,  1836,  which  provides,  inter  alia,  that  the  claim 
or  statement  filed  in  the  office  of  the  prothonotarj, 
shall  set  out  Hhe  amount  or  sum  claimed  to  be  due,  and 
the  nature  or  kind  of  the  work  done,  or  the  kind  and 
amount  of  materials  famished,  and  the  time  when  the 
materials  were  furnished,  or  the  work  was  done,  as  the 
case  may  be.'  As  this  statute,  and  those  of  a  kindred 
character,  which  preceded  it,  confer  a  large  license 
upon  the  class  of  meritorious  citizens  whose  interests 
it  was  intended  to  advance ;  our  courts  have  found  it 
necessary,  for  the  protection  of  others,  to  hold  them 
to,  at  least,  a  substantial  compliance  with  the  requisi- 
tions of  the  Acts  of  Assembly.  This  observance  is, 
indeed,  absolutely  essential  to  the  safety  of  OAvners, 
purchasers,  and  other  lien  creditors,  as  furnishing  some 
data  by  which,  in  case  of  dispute,  they  may  be  enabled 
to  search  out  the  truth.  The  clue  may  be  an  imper- 
fect one ;  but  in  this  consideration  will  be  found  addi- 
tional reason  why  it  should  be  afforded  to  those,  who, 
otherwise,  are  left  to  grope  in  obscurity,  without  even 
a  glimmer  of  light  by  which  to  direct  research.  As 
the  law  calls  for  nothing  unreasonable  at  the  hand  of 
him  who  would  fasten  an  encumbrance  upon  the  pro- 
perty of  his  neighbour,  no  just  ground  of  complaint  is 
afforded  l;y  insisting  upon  a  rigid  adherence  to  its 
provisions.  The  information  it  exacts  is,  or  ought  to 
be,  entirely  within  the  power  of  the  creditor  to  give, 
and  an  omission  to  put  it  on  the  record  is,  therefore, 
without  excuse :    Rehrcr  v.  Zeigler,  3  Watts  &  Serg. 


40  CONSTRUCTION  OF  THE  LAW. 

258;  Thomas  v.  James,  7  Watts  &  Serg.,  381;  Wit- 
man  V.  Walker,  9  Watts  &  Serg.,  186.  Indeed,  the 
great  object  of  the  statute  in  pointing  out  the  charac- 
teristics of  the  statement  to  be  liled,  would,  in  the  end, 
be  utterly  defeated,  were  we  to  indulge  the  laxity  of 
practice  which  ignorance  and  carelessness  conspire  to 
introduce  and  perpetuate."^ 

But  notwithstanding  this  language,  the  great  cur- 
rent of  authority  is  in  favour  of  a  most  indulgent  re- 
gard for  these  claims,  in  respect  of  their  form. 

A  late  decision  of  the  District  Court  for  the  City  and 
County  of  Philadelphia,  contains  suggestions  wdiich 
deserve  mention  here.  Hare,  J.,  in  delivering  the 
opinion  of  the  court,  says :  "Although  the  system  of 
mechanics'  liens  owes  its  origin  to  the  liberal  ideas  of 
the  present  day,  it  is  encumbered  with  restrictions  un- 
known to  the  most  technical  periods  of  the  English 
law,  it  is  without  the  aid  of  the  statutes  of  jeofails, 
and  beyond  that  of  the  common  law  power  of  amend- 
ment. Where  so  much  strictness  is  required  in  alle- 
gation, we  should  not  impose  additional  difficulties  in 
the  way  of  proof,  and  should,  in  the  language  of  Lord 
Mansfield,  avoid  entangling  the  right  in  a  net  of  form."  - 

There  is  a  class  of  cases  in  which  questions  of  con- 
struction have  arisen  with  reference  to  the  retrospec- 
tive effect  of  certain  Acts  of  Assembly,  which  should 
be  noticed  here.  In  some  of  these  instances,  the  views 
of  the  court  have  been  based  upon  the  words  of  the 
particular  enactment.     Thus,  it  was  made  a  question, 

'  6  B.  191.  ^  Haviland  v.  Pratt,  9  Leg.  Int.  98. 


CONSTRUCTION  OF  THE  LAW.  41 

whether  the  Act  of  1803  applied  to  a  building  erected 
before  its  passage.  The  court  refer  to  the  words  in 
the  Act,  "all  buildings  thereafter  to  be  constructed 
and  erected/'  and  appear,  in  part,  to  rely  upon  them 
in  deciding  that  such  a  building  was  not  within  its 
provisions. 

But  in  this  case  the  court  also  say;  "and  if  that 
Act  is  to  comprehend  such  cases,  it  might  follow,  that 
a  mortgagee  or  judgment  creditor,  whose  lien  com- 
menced between  the  beginning  of  the  building  and  the 
making  of  the  law,  would  be  cut  out  by  an  ex  jjost 
facto  operation,  which  never  could  have  been  the  in- 
tent of  the  legislature."^ 

So,  in  a  later  decision,  the  court  held  that  the  Act  of 
June  16th,  1836,  was  prospective  in  its  operation,  and 
did  not  affect  claims  filed  prior  to  its  passage.  But  it 
does  not  appear  from  the  opinion  whether  this  conclu- 
sion was  reached  upon  general  constitutional  princi- 
ples or  from  the  words  of  the  statute.  ^ 

But  in  subsequent  cases  new  aspects  of  the  question 
were  presented.  Soon  after  the  Act  of  1840,  to  which 
we  have  already  referred,  which  confined  the  lien  of 
the  mechanic,  and  the  title  under  it,  to  the  estate  "of 
the  person  or  persons  in  possession  at  the  time  of  com- 
mencing" the  building,  "and  at  whose  instance  the 
same  is  erected,"  the  courts  were  called  upon  to  decide 
whether  a  sale  made  after  the  passage  of  the  Act,  un- 

'  Steinmetz  v.  Boudinot,  3  S.  &  R.  542. 

''  Cliureh  V.  Davis,  9  AV.  304.  See  also,  Evans  v.  Springer,  2  M, 
30.  Matlack  V.  Hoy,  ib.  note.  IlajH  v.  Tryon,  2  M.  212.  Mustin 
V.  Vanhook,  3  Wh.  574. 


42  CONSTRUCTION  OF  THE  LAW. 

der  a  claim  filed  before  it,  was  governed  by  its  pro- 
visions; or  whether  a  fee  simple  passed  to  the  pur- 
chaser, in  accordance  with  the  enactments  of  prior 
statutes,  as  construed  by  the  decisions. 

It  will  be  found,  upon  referring  to  the  Act  of  1840, 
that  though  there  are  no  expressly  retrospective  words 
in  the  enactment,  there  is  ground  for  a  presumption 
that  such  an  effect  was  intended. 

In  the  earliest  of  these  cases  Sergeant,  J.,  in  deliver- 
ing the  opinion  of  the  court,  says :  "  All  that  has  been 
or  can  be  objected  to  the  provisions  of  the  Act  of  As- 
sembly in  question,  passed  on  the  28th  of  April,  1840, 
is,  that  it  has  modified  the  remedy  which  the  credi- 
tor possessed,  according  to  the  construction  of  the 
courts,  for  the  recovery  of  his  debt,  under  the  previ- 
ous Acts  of  Assembly  giving  mechanics  and  material 
men  a  lien  for  their  work  or  materials.  But  it  is  now 
clearly  established,  by  repeated  decisions,  that  the  le- 
gislature may  pass  laws  altering,  modifying  or  even 
taking  away  remedies  for  the  recovery  of  debts,  with- 
out incurring  a  violation  of  the  clauses  in  the  consti- 
tution which  forbid  the  passage  of  ex  post  facto  laws, 
or  laws  impairing  the  obligation  of  contracts.  And 
where  the  provisions  of  such  laws,  in  relation  to  re- 
medies, apply  only  to  future  proceedings,  there  is  not 
the  least  ground  for  appealing  to  constitutional  re- 
strictions on  the  powers  of  the  legislature.  Such  is 
the  case  in  the  present  instance,  so  far  as  concerns 
sales  thereafter  to  be  made;  for  the  Act  expressly  de- 
clares, that  no  other  or  greater  estate  shall  be  sold  by 
virtue  of  any  execution  directed  or  authorized  by  the 


coxstkuctio:n"  of  the  latt.  43 

former  act,  than  that  of  the  person  who  is  in  possession 
and  erecting  the  building.  Supposing,  therefore,  that 
the  Act  of  16th  of  June,  1836,  was  subject  to  the 
same  interpretation  which  was  given  by  this  court  to 
the  Acts  of  1803  and  1806  (which,  however,  has  ne- 
ver been  decided ;)  fet  it  is  no  more  than  a  statutory 
enactment  abrogating  the  existing  remedy  in  all  fu- 
ture proceedings.  The  remedy,  itself,  certainly,  went 
to  a  great  extent,  when  it  enabled  one  person  to  divest 
another  of  his  land  without  his  participation  in  the 
building,  and,  perhaps,  without  his  knowledge.  It 
was,  moreover,  altogether  a  statutory  remedy,  created 
by  the  legislature,  not  known  to  the  common  law,  a 
boon  to  a  favoured  class  of  the  community,  for  the 
special  encouragement  of  labour  in  the  erection  of 
houses,  and  subject  to  the  control  of  the  legislature, 
either  to  alter,  vary  or  modify  it,  or  repeal  it  alto- 
gether. Montgomery,  the  purchaser,  has  no  reason- 
able ground  of  complaint,  because  the  Act  was  passed 
several  months  prior  to  his  purchase,  and,  therefore, 
he  is  to  be  considered  as  well  aware  of  it,  and  as  buy- 
ing under  its  authority  and  subject  to  its  provisions, 
according  to  which  he  took  only  the  leasehold  estate 
of  Miller,  as  his  assignee,  and  is  subject  to  all  the 
covenants  contained  in  the  lease."^ 

In  this  decision,  it  will  be  observed,  the  reasoning  of 
the  court  is  based  entirely  upon  the  doctrine,  that  the 
Act  in  question  did  not  impair  a  contract,  but  only 
modified  a  remedy.     Its  effect,  as  a  statute  declarato- 

'  Evans  v.  Montgomery,  4  W.  &  S.  220. 


44  CONSTRUCTION  OF  THE  LAW. 

ry  of  the  meaning  of  that  of  183G,  was  not  referred  to, 
nor  was  its  retroactive  force  with  reference  to  a  title 
actually  vested  under  the  Act  of  1836,  prior  to  its 
passage,  in  controversy. 

But  in  a  case  following  it,  immediately,  the  ques- 
tion of  its  effect  upon  a  sale  made  before  its  enact- 
ment, came  directly  up.  In  that  case  the  claim  had 
been  filed  and  a  sale  under  it  made  in  1839.  Gibson, 
J.,  after  an  earnest,  and  almost  indignant  opinion  in 
favour  of  the  law  as  it  stood  under  the  earlier  deci- 
sions, says : — "  But,  whatever  the  design,  a  legislative 
mandate  to  change  the  settled  interpretation  of  a  sta- 
tute and  uproot  titles  depending  on  past  adjudications, 
or  a  legislative  direction  to  perform  a  judicial  func- 
tion in  a  particular  way,  would  be  a  direct  violation 
of  the  constitution,  which  assigns  to  each  organ  of  the 
government  its  exclusive  function  and  a  limited  sphere 
of  action.  No  one  will  assert  that  a  court  would  be 
bound  by  a  mandate  to  decide  a  principle,  or  a  cause 
in  a  particular  way.  Such  a  mandate  would  be  a 
usurpation  of  judicial  power,  and  more  intolerable  in 
its  exercise  than  a  legislative  writ  of  error,  because 
the  losing  party  would  be  concluded  by  it,  without  be- 
ing heard.  In  the  case  before  us,  we  are  firmly  con- 
vinced, that  the  legislature  did  not  design  to  deprive 
purchasers  of  their  titles  acquired  under  the  original 
act;  but  whatever  the  design,  we  are  bound  to  give 
the  section  a  benign  interpretation. 

"Yet  we  are  not  compelled  by  the  preceding  consi- 
derations to  give  it  an  operation  entirely  prospective. 
No  one  has  purchased  on  the  faibh  of  a  judicial  expo- 


CONSTRUCTION  OF  THE  LATV^.  45 

sition  of  the  Act  of  1836,  for  it  has  received  none. 
Purchasers  have  acted  on  their  own  interpretation  of 
its  meaning,  and,  consequently,  on  their  own  responsi- 
bility. They  cannot  complain  of  violated  faith  given 
to  the  accredited  act  of  a  constitutional  organ ;  and, 
till  the  judiciary  has  fixed  the  meaning  of  a  doubtful 
law,  the  legislature  has  a  right  to  explain  it.  The 
Act  of  1836  was  susceptible  of  such  explanation.  It 
was  not  the  law  which  had  been  before  the  courts ; 
and  the  construction  given  to  its  predecessors,  was 
not  applicable  to  it  with  conclusive  force.  For  that 
reason  alone  the  judgment  is  sustained."^ 

It  is  very  manifest  from  this  language  of  the  court, 
that  if  the  Act  of  1836  had  been  previously  construed 
as  prior  Acts  had  been,  and  as  it  must  have  been,  had 
a  case  arisen,  the  decision  would  have  been  different. 
The  Act  of  1840  was  evidently  treated  by  the  court 
as  one  affecting  rights  and  contracts,  and  not  a  mere 
modification  of  the  remedy.  And  it  was  only  saved, 
so  far  as  its  retroactive  effect  was  concerned,  by  the 
very  forced  and  artificial  argument,  that  as  the  Act  of 
1836  had  not  actually  received  a  judicial  construc- 
tion, no  right  could,  technically,  be  said  to  be  impaired. 
This  decision  disregarded  entirely  the  very  simple  rea- 
soning that  Acts  prior  to  that  of  1836  had  been  ex- 
pressly held  to  affect  the  fee,  that  the  Act  of  1836  did 
not  differ  from  them  at  all  in  this  respect,  that  the  ear- 
lier decisions  were,  therefore,  in  fact,  constructions  of 
the  law  of  1836,  so  far  so,  at  least,  that  upon  the  faith 

'  O'Connor  v.  AVarncr,  4  W.  &  S.  223.    And  see  O'Brien  v.  Lo- 
gan, 0  B.  97. 


46  CONSTRUCTION  OF  THE  LATT. 

of  them,  the  title  in  question,  and  others  had  been 
taken. 

We  cannot  but  consider  the  opinion  of  the  court  in 
the  latter  case,  therefore,  as  somewhat  in  conflict  with 
the  former. 

In  a  still  later  case  the  subject  came  up  under  a 
different  Act,  and  new  elements  appear  to  have  been 
introduced.  "We  have  before  remarked,  that  prior  to 
1845,  it  had  been  decided  that  no  person  who  had 
done  work,  or  furnished  materials,  under  a  special  con- 
tract, could  file  a  claim,  and  that  an  enactment  of  that 
year  had  declared  that  the  Act  of  1836  should  be  con- 
strued so  as  to  induce  such  contract.  A  claim  was 
filed,  in  1843,  alleging  a  special  contract,  and  upon  a 
scire  facias,  the  question  arose,  in  1847,  whether  the 
Act  of  1845  had  a  retroactive  effect  to  support  it.  Ch. 
J.  Gibson  says :  "  So  far  as  regards  the  parties  to  the 
contract  to  build,  the  enactment  of  the  statute  in 
question  was  clearly  constitutional.  No  alteration  of 
their  rights  was  proposed,  further  than  to  give  a  spe- 
cific remedy  against  the  property,  in  addition  to  the 
remedy  which  the  contractor  had  against  it,  indi- 
rectly, by  action;  and  retrospective  laws  have  al- 
ways been  sustained,  where  they  touched  not  the 
right,  but  the  remedy.  So  far  there  is  no  dispute. 
But  the  scene  may  be  changed  by  the  introduction  of 
a  purchaser  for  value,  actually  paid,  at  a  time  when 
the  property  was  free  from  the  supposed  lien;  and  it 
is  proper  to  say,  that  his  having  had  notice  of  a  de- 
fective lien  would  be  immaterial.  ...  A  mecha- 
nic's lien  depends  on  no  principle  of  moral  right,  but 


CONSTRUCTION  OF  THE  LAW.  47 

on  positive  enactment,  of  which  it  is  the  creature; 
and  beyond  the  terms  of  which  it  cannot  be  extended. 
If,  then,  the  legislature  cannot  directly  create  a  lien 
for  the  debt  of  another,  where  none  existed  before,  it 
cannot  do  it,  indirectly,  by  putting  a  particular  con- 
struction on  a  statute  which  had  received  a  different 
construction  before  the  period  of  the  purchase."  ^ 

1  Bolton  V.  Johns,  5  B.  149. 


48  LOCAL  EXTENT  OF  THE  LAW. 


CHAPTER  III. 

OF  THE  LOCAL  EXTENT  OF  THE  LAW. 

The  provisions  of  the  Act  of  1803  were  confined 
to  "  the  city  of  Phikidelphia,  the  district  of  Southwark, 
and  the  township  of  the  Northern  Liberties."  That 
Act  was  repealed,  however,  by  one  of  1806,  except  so 
far  as  it  applied  to  liens  cognizable  by  its  provisions 
previously  to  the  later  Act,  and  to  actions  then  pend- 
ing under  its  enactment. 

The  Act  of  1806  embraced  "the  city  and  county 
of  Philadelphia." 

By  an  Act  of  March  28th,  1808,  the  Act  of  1806 
was  declared  to  be  in  force  "in  the  borough  of  Erie, 
in  the  county  of  Erie,  the  borough  of  Lancaster  in  the 
county  of  Lancaster,  and  the  borough  of  Pittsburgh, 
in  the  county  of  Allegheny." 

By  an  Act  of  January  21st,  1813,  the  Act  of  1806, 
with  its  supplement  of  1808,  were  declared  to  be  in 
force  "in  the  borough  of  Beaver,  in  the  county  of 
Beaver." 

By  an  Act  of  March  1,  1815,  the  same  Act  and 
supplement  were  declared  to  be  in  force  "in  the  bo- 
rough of  Marietta,  in  the  county  of  Lancaster,  and 
the  borough  of  Harrisburgh,  in  the  county  of  Dau- 
phin." 

By  an  Act  of  March  22nd,  1817,  the  same  Act  and 


LOCAL  EXTENT  OF  THE  LAW.  49 

supplement  were  declared  to  be  in  force  "in  the  Bo- 
rough of  Reading,  in  the  county  of  Berks,  in  the  Bo- 
rough of  Westchester,  in  the  county  of  Chester,  and 
in  the  towns  of  Allegheny,  Birmingham,  Sidneyville, 
Belinstown,  Bayardstown,  Lawrenceville,  and  Wil- 
kinsburgh,  in  the  county  of  Allegheny,  and  all  other 
towns  and  villages  that  now  are  or  may  be  laid  out 
within  ten  miles  of  the  line  of  the  city  of  Pittsburgh, 
and  in  every  part  of  the  counties  of  Lancaster,  Mont- 
gomery, York,  Dauphin,  Franklin  and  Lebanon." 

Li  the  case  of  Tilford  v.  Wallace,  a  lien  was  filed 
against  a  brick  house  situated  "on  an  eminence  be- 
tween the  Pittsburgh  and  Greensburgh  Turnpike,  and 
the  village  of  Lawrenceville."  It  was  proved  at  the 
trial,  that  the  building  was  not  in  the  village  of  Law- 
renceville, nor  in  any  village  possessing  a  name,  but 
that  it  was  in  the  midst  of  a  collection  of  buildinc-s 
adjoining  Lawrenceville.  It  was  held  by  the  court 
that  the  lien  was  invalid;  that  the  house  was  not 
within  the  town  of  Lawrenceville ;  that,  though  it  was 
within  two  miles  from  Pittsburgh,  the  collection  of 
buildings  among  which  it  stood,  having  no  name,  could 
not  be  considered  as  a  "town,"  or  "village,"  and  that 
it  was  therefore  not  within  the  terms  of  the  Act  of 
1817.1 

V>y  an  Act  of  March  24,  1818,  the  same  Act  and 
supplement  were  declared  to  be  in  force  in  the  coun- 
ties of  Cumberland,  Northumberland,  Columbia  and 
Beaver. 

»  3  Watts,  143. 


50  LOCAL  EXTENT  OF  THE  LAW. 

By  an  Act  of  March  Tth,  1821,  tliey  were  declared 
to  be  in  force  in  the  counties  of  Delaware,  Bucks,  Lu- 
zerne, and  Mifllin. 

By  an  Act  of  April  11th,  1825,  they  were  declared 
to  be  in  force  in  the  counties  of  Schuylkill,  Berks, 
Erie,  Somerset,  and  Venango. 

By  an  Act  of  April  10th,  1826,  they  were  declared 
to  be  in  force  in  the  counties  of  Crawford,  Lycoming, 
Centre,  Clearfield,  and  Indiana. 

By  an  Act  of  April  ICth,  1827,  they  were  declared 
to  be  in  force  in  the  county  of  Union. 

By  an  Act  of  February  4th,  1830,  they  were  declared 
to  be  in  force  in  the  borough  of  Easton,  in  the  county 
of  Northampton. 

By  an  Act  of  March  30th,  1831,  they  were  declared 
to  be  in  force  in  the  counties  of  Bedford,  Cambria, 
Tioga,  and  Armstrong. 

By  an  Act  of  May  Tth,  1832,  the  Act  of  180G  and 
supplements  of  1808  and  1831  were  declared  to  be  in 
force  in  the  counties  of  Chester,  Butler  and  Perry. 

By  an  Act  of  April  11th,  1835,  the  Act  of  180G, 
and  its  supplement  of  1808,  were  declared  to  be  in 
force  in  the  counties  of  Warren  and  Juniata. 

By  an  Act  of  April  13th,  1835,  the  Act  of  180G, 
and  its  supplements  of  1808  and  1831,  were  declared 
to  be  in  force  in  the  counties  of  Washington,  Hunting- 
don, Mercer,  Beaver  and  Allegheny. 

By  an  Act  of  April  1st,  1836,  the  Act  of  1806,  and 
its  supplements  of  1808  and  1831,  were  extended  to 
Susquehanna  county. 

It  will  be  oljserved,  that,  in  some  of  these  several 


LOCAL  EXTENT  OF  THE  LAT7.  51 

Acts  extending  the  lien,  no  mention  is  made  of  any 
supplements  except  that  of  1808,  and  that,  in  others, 
those  of  1808  and  1831  are  both  embraced. 

The  Act  reported  by  the  Commissioners  to  revise 
the  Civil  Code,  on  the  4th  of  January,  1836,  applied 
to  the  whole  Commonwealth.  It  ran ; — "  Every  build- 
ing erected  within  this  Commonwealth  shall  be  subject 
to  a  lien,  &c."  And  they  say,  in  speaking  of  this 
section : — "  The  first  section  makes  the  provision  gene- 
ral. It  has  already  been  extended  over  the  principal 
part  of  the  state,  rural  as  well  as  urban,  and  we  see 
no  reason  why  it  should  not  be  general.  If  it  should 
not  be  acceptable,  however,  in  any  county,  or  place,  a 
section  may  be  added  excepting  such  place." 

When  the  Act  came  before  the  legislature,  how- 
ever, it  was  altered  in  this  respect.  The  Act  of  June 
16th,  1836,  w4iich  was,  in  the  main,  that  reported  by 
the  Commissioners,  and  which  was  intended  to  bring 
into  one  body  all  the  provisions  upon  this  subject,  re- 
peals so  much  of  any  law  as  was  altered  by  its  enact- 
ments, and  declares  its  own  provisions  applicable  to 
the  several  counties  to  which  the  Act  of  1806  "and 
the  several  supplements  thereto"  then  extended. 

It  was,  no  doubt,  the  intention  of  the  legislators 
that  the  benefit  of  this  Act  of  1836  should  extend  to 
all  of  the  several  counties,  boroughs,  towns  and  vil- 
lages in  which  the  Act  of  1806  had  been  declared  to 
be  in  force,  without  reference  to  the  fact  whether  all 
of  its  supplements  had  been  extended  to  each  of  them. 
But  the  words  of  the  former  Act  might,  upon  a  strict 
construction,  lead  to  a  (juestion.     Particularly,  when 


52  LOCAL  EXTENT  OF  THE  LATT. 

we  find,  as  will  appear  presently,  that  even  since  the 
Act  of  June  ICth,  183C,  and  its  repealing  clause,  the 
Act  of  1806  and  its  supplement  of  1808,  alone,  have 
been  declared  to  be  in  force  in  a  certain  locality ;  as  if 
there  were  those  who  still  preferred  the  provisions 
of  the  earlier  statute,  and  that  one  supplement,  to  those 
of  the  later  one.  It  would  be  dangerous,  however,  to 
hazard  the  opinion  that  no  county  which,  prior  to  the 
passage  of  the  Act  of  1836,  had  not  received  the  Act 
of  1806  and  all  its  supplements,  was  not  included  in 
the  new  legislation,  for  the  whole  weight  of  usage,  at 
least,  seems  to  be  the  other  way. 

The  Act  of  June  16th,  1836,  extends  its  own  pro- 
visions to  the  county  of  Lehigh. 

By  an  Act  of  April  16th,  1838,  the  Act  of  1806, 
and  its  supplement  of  1808,  were  declared  to  be  in 
force  in  the  county  of  Bradford.  It  will  be  seen  how- 
ever, presently,  that  in  a  subsequent  year,  this  Act 
was  repealed,  and  the  Act  of  1836  was  extended  to 
the  same  county. 

By  an  Act  of  April  16th,  1840,  the  Act  of  1836  is 
declared  to  be  in  force  in  "Wayne  and  Fayette  counties. 

By  Acts  of  March  19th,  and  April  6th,  1841,  the 
Act  of  1836  is  extended  to  the  counties  of  Clinton, 
Clarion  and  M'Kean. 

By  an  Act  of  February  19  th,  1842,  the  above  Act 
of  1838  is  repealed,  and  the  Act  of  1836,  and  its  sup- 
plement of  1840,  are  extended  to  Bradford  and  Mon- 
roe counties.  By  Acts  of  March  25 th  and  August 
2nd,  of  the  same  year,  the  Act  of  1836  is  extended  to 
Greene  and  Dauphin  counties. 


LOCAL  EXTENT  OF  THE  LAW. 


53 


By  an  Act  of  April  5th,  1843,  the  Act  of  1836  is 
extended  to  the  counties  of  Potter  and  Jefferson. 

B}^  an  Act  of  March  19th,  1844,  the  Act  of  183G 
is  declared  to  be  in  force  in  Northampton  county. 

By  an  Act  of  March  11th,  1846,  the  Act  of  1836, 
with  its  supplements,  and  a  supplemental  provision  of 
an  Act  of  1845,  are  extended  to  Pike  county. 

By  an  Act  of  April  13th,  1846,  the  Act  of  1836, 
"together  with  the  several  supplements  thereto,"  are 
extended  to  Adams  county. 

By  an  Act  of  April  9th,  1849,  the  Act  of  1836  is 
extended  to  the  counties  of  Westmoreland  and  Elk, 

By  an  Act  of  April  26th,  1850,  the  Act  of  1836  is 
extended  to  Carbon  county. 

The  following  counties,  therefore,  seem  now  to  be 
included  within  the  general  provisions  of  the  law  of 
1836,  and  to  many  of  them  its  supplements  extend. 


Adams, 

Clarion, 

Huntingdon, 

Allegheny, 

Clearfield, 

Indiana, 

Armstrong, 

Clinton, 

Jefferson, 

Beaver, 

Columbia, 

Juniata, 

Bedford, 

Crawford, 

Lancaster, 

Berks, 

Cumberland, 

Lebanon, 

Bradford, 

Daujihin, 

Lehigh, 

Bucks, 

Delaware, 

Luzerne, 

Butler, 

Elk, 

Lycoming, 

Caml)ria, 

Erie, 

M'Kean, 

Carbon, 

Fayette, 

Mercer, 

Centre, 

Franklin, 

MilUin, 

Chester, 

Greene, 

Monroe, 

54  LOCAL  EXTENT  OF  THE  LAW. 


Montgomery, 

Potter, 

Venango, 

Northampton, 

Schuylkill, 

Warren, 

Northumberland 

,  Somerset, 

Washington, 

Perry, 

Susquehanna, 

Wayne, 

Philadelphia, 

Tioga, 

"Westmoreland, 

Pike, 

Union, 

York. 

It  is  hardly  worth  while  to  enumerate  the  boroughs, 
towns  and  villages  mentioned  in  some  of  the  Acts 
which  we  have  referred  to.  The  entire  counties  in 
which  they  are  found,  have,  by  later  provisions,  been 
included  within  the  application  of  the  law. 

These  several  counties  are  not,  however,  upon  ex- 
actly the  same  footing,  with  respect  to  all  the  provi- 
sions of  the  Acts  of  Assembly  in  regard  to  the  lien  of 
mechanics  and  material  men. 

By  the  29th  section  of  the  Act  of  1836,  the  lien  is 
extended  to  plumbers,  and  persons  furnishing  curb- 
stone within  the  city  and  county  of  Philadelphia 
only. 

By  an  Act  of  April  24th,  1843,  this  section  was  ex- 
pressly declared  to  be  in  force  in  Northampton  county. 
But  this  enactment  seems  to  have  been  premature. 
The  rest  of  that  Act  was  then  not  in  force,  in  any 
part  of  that  county,  except  the  Borough  of  Easton. 
In  the  next  year,  1844,  the  mistake  appears  to  have 
been  discovered,  and  the  entire  Act  of  1836  was  ex- 
tended to  the  whole  of  Northampton  county. 

By  an  Act  of  March  24th,  1849,  the  Act  of  1836 
is  "extended  to  plumbers  within  the  county  of  Ches- 
ter."    And  by  an  Act  which  became  a  law  on  the 


LOCAL  EXTENT  OF  THE  LAW.  55 

23rd  of  January,  1849,  the  29th  section  of  the  Act  of 
1836  was,  also,  extended  to  that  county. 

By  an  Act  of  May  6th,  1844,  the  Act  of  1836  is 
extended  to  plumbers  and  persons  furnishing  curb- 
stones, &c.,  &c.,  within  the  bounds  of  the  city  of  Lan- 
caster. 

By  an  Act  of  April  9th,  1849,  the  Act  of  1836  is 
extended  to  "every  fixture  in  and  about  iron  works 
and  mines,  and  to  every  bridge  and  building  where 
work  is  done,  or  materials  furnished  in  the  construction 
of  such  fixture,  in  and  about  mines  or  iron  works, 
bridge  or  building  for  any  corporate,  body,"  &c.  But 
this  provision  only  applies  to  the  counties  of  Columbia 
^  and  Elk. 

By  an  Act  of  April  21st,  1854,  extending  only  to 
Schuylkill  county,  the  Act  of  1836  is  extended  to  the 
'•'improvements,  machinery  and  fixtures  erected  by 
tenants  of  coal  lease  estates,  on  lands  of  others,  and  to 
all  mechanics  and  material  men,  doing  work  and  fur- 
nishing materials  therefor." 

Certain  special  licenses  in  procedure  are,  also,  by 
different  Acts  granted  within  one  or  two  counties 
only.  Thus  by  an  Act  of  March  24th,  1849,  me- 
chanics or  material  men,  in  the  counties  of  Phihadel- 
phia  and  Chester,  are  allowed  to  include  both  work 
and  materials  in  the  same  claim.  And  the  Act  just 
mentioned,  which  extends  the  application  of  the  law 
in  Sclmylkill  county,  gives  a  peculiar  process  for  the 
recovery  of  the  sums  secured  by  the  liens  for  which  it 
provides. 


56  LOCAL  EXTENT  OF  THE  LAW. 

The  general  character  of  the  distinctions  made  be- 
tween different  counties  will  appear  from  these  re- 
marks. Under  the  proper  heads  we  shall  treat  them 
more  in  detail. 


PAET  II. 


OF   THE   CASES   TO   WHICH   THE   LAW  APPLIES. 


CHAPTEE  I. 


WHO    MAY   HAVE    THE   LIEN. 


It  is  scarcely  worth  our  while  to  discuss  the  ques- 
tion, who  may  have  this  remedy  in  respect  of  their 
personal  status.  No  particular  mention  is  made,  in 
the  several  Acts,  oivamox:^,  femes  covert,  idiots,  lunatics, 
persons  acting  in  a  fiduciary  capacity,  or  aliens.  It 
is  presumed  that  the  same  rules  which  govern  their  re- 
spective rights  and  remedies  in  other  cases,  will  ho 
applicable,  generally,  to  this  subject. 

It  might  appear,  at  first  view,  that,  under  this 
head,  it  would  be  proper  to  consider  who  may  have 
tlie  lien  with  respect  to  the  nature  of  his  trade  or  oc- 
cupation. It  will  Ijc  found  on  reflection,  however, 
that  tliis  topic  falls  more  properly  under  the  next 
head.  Wiiether  the  paper-hanger,  plumber  or  other 
particular  artisan  is  within  the  law,  is  a  question  de- 
pending, as  will  be  found,  less  on  himself  and  his  own 


58  WHO  MAT  HAVE  THE  LIEN. 

relation  to  the  structure,  than  on  the  relation  and  im- 
portance of  his  work.  It  has  respect  to  the  debt,  there- 
fore, for  which  a  claim  may  he  filed,  and  its  nature 
and  origin,  rather  than  to  the  person  of  the  claimant. 

But  there  are  certain  other  questions  depending  on 
the  character  of  the  person  who  makes  the  claim  with 
respect  to  his  relations  with  others  connected  with  the 
structure,  which  it  is  proper  for  us  to  mention  here. 
These  questions  have  arisen  in  reference  to  the  claims 
on  the  part  of  the  owner  of  the  building  himself,  the 
contractor,  as  he  is  called,  or  middle  man  between  the 
owner  and  those  more  directly  concerned  in  the  con- 
struction, the  sub-contractors,  or  those  whose  several 
contracts  relate  only  to  specified  portions  of  the  work 
or  materials,  the  master  mechanics  and  material  men 
employed  by  the  contractor  or  sub-contractors,  and 
the  mere  journeymen  and  day-labourers. 

It  has  been  held  that  an  owner  cannot  enforce  a 
claim  against  his  own  building,  so  as  to  prejudice  third 
persons.  In  one  of  the  cases  in  which  the  point  arose, 
a  voluntary  association  of  the  Order  of  Odd-Fellows 
erected  a  building  for  a  Lodge,  upon  premises  con- 
veyed to  trustees  for  their  use.  Several  members  of 
the  association  filed  claims  and  pressed  them  before 
an  auditor  appointed  to  distribute  the  proceeds  of 
a  sale  of  the  premises  by  the  Sheriff.  Their  liens 
were  disputed  by  other  creditors.  The  Court  in  its 
opinion,  says:  "But  that  a  person  can  enforce  a  lien 
on  his  own  building,  at  the  expense  of  third  persons 
who  hold  similar  liens  on  it  for  debts  contracted  by 
the  former  to  the  latter,  is  not  reconcileable  with  law 


WHO  MAY  HAVE  THE  LIEN".  59 

or  equity.  At  law,  the  lien  of  the  owner  would  merge 
in  the  property,  since  no  man  can  be  both  debtor  and 
creditor;  and  equity  would  not  uphold  it,  in  order  to 
place  in  the  hands  of  the  owner  himself,  a  portion  of 
that  fund  which  ought  to  go  to  his  creditor,  whose 
debt  was  contracted  on  the  faith  of  the  fund."^ 

In  another  case,  the  owner  did  work  upon  his  own 
building,  but  filed  no  claim.  Other  claimants,  how- 
ever, sought  to  avail  themselves  of  his  work  to  give 
their  own  a  relation  back  which  would  cut  out  a  judg- 
ment: Huston,  J.,  says: — "As  to  what  was  done  by 
the  owner,  whether  it  was  propping  the  walls,  or 
propping  the  scaffold  and  covering  the  walls,  I  leave 
it  out  of  the  case ;  he  got  no  lien  by  that,  nor  could 
he  acquire  any  lien  by  any  work  he  could  do :  his 
work  is  not  within  the  law."  "  If  his  work  could  cre- 
ate no  lien  in  his  own  favour,  it  is  not  easy  to  see 
how  it  can,  by  relation,  carry  back  the  lien  of  other 
workmen,  so  as  to  over-reach  and  cut  out  the  judg- 
ment creditors  of  the  owner."  ^ 

In  the  first  of  these  two  cases,  the  Court  say :  "  It 
is  possible  that  persons  jointly  owning  lots  of  ground, 
and  erecting  buildings  upon  them,  to  which  they  fur- 
nish work  and  materials,  may  file  liens  under  the 
Acts  of  Assembly,  and  maintain  them,  among  them- 
selves, on  the  ground  that  they  are  in  equalijure,  and 
to  be  considered  as  mutually  waiving  objections." 
And  they  only  held,  that  those  claimants  who  were 
members  of  the   association  should  be  postponed  to 


'  Bubb  V.  Reed,  5  R.  159. 

■■'  Stevenson  v.  Stoncliill,  5  ^Vh.  30G. 


GO  ^TIIO  MAT  HAVE  THE  LIEN. 

those  who  were  not;  rather  intimating,  by  the  lan- 
guage of  the  decision,  that  the  former  might,  when 
the  hatter  were  paid,  come  in  upon  the  balance. 

The  court,  in  these  decisions,  probably,  intended  to 
cast  no  doubt  upon  the  right  of  an  owner  to  purchase  a 
mechanic's  lien,  and  keep  it  alive  against  his  own 
property,  for  his  security,  in  cases  similar  to  those  in 
which  he  might  purchase  a  judgment  or  a  mortgage, 
and  continue  its  existence  for  a  like  purpose. 

The  next  person  whose  right  to  file  a  claim  has 
been  brought  in  question,  is  the  person  ordinarily 
called  the  contractor.  He  is  the  middle  man  between 
the  owner  and  those  more  directly  engaged  in  the 
erection,  and,  generally,  has  a  gross  contract  for  the 
entire  building.  He  employs  the  workmen  and  buys 
the  materials,  and  is,  personally,  their  debtor  for  all 
that  they  do  or  furnish.  Such  intermediate  agents 
are  very  common. 

In  the  Act  of  1803  no  provision  w^as  made  for  any 
case  in  which  the  owner  was  not  the  debtor.  A  claim 
could  be  filed  only  for  a  debt  "contracted  by  the 
owner  or  owners."  The  contractor,  in  the  present 
sense  of  the  term,  was,  not  only,  not  mentioned,  but 
his  interposition  between  the  mechanic  and  the  owner 
would  have  prevented  the  application  of  the  Act,  and 
deprived  the  claimant  of  his  lien. 

In  the  case  of  Steinmetz  v.  Boudinot,  the  mechanic 
had  made  no  contract  with  the  legal  owner  of  the  pre- 
mises against  which  he  filed  his  claim,  but  with  one 
to  whom  the  owner  had  covenanted  to  convey,  on 
ground  rent,  and  who  was  erecting  the  building.     The 


"WHO  MAT  HAVE  THE  LIEN.  61 

Court  say,  upon  this  point :  "  But,  whether  the  defen- 
dant was  owner,  or  not,  was  immaterial,  unless  he 
contracted  the  debt.  When  this  Act  of  Assembly  was 
made,  it  was  very  common  for  the  proprietors  of  ground 
to  contract  with  a  mechanic  of  character,  for  the 
building  of  a  house.  The  proprietor  paid  a  certain 
sum  of  money  for  the  building,  when  completed ;  and 
the  mechanic  purchased  materials,  and  built  the  house, 
on  his  own  credit.  Now  it  is  very  clear,  that,  in  such 
case,  the  act  created  no  lien."^ 

So,  also,  in  Jones  v.  Shawan,  Gibson,  C.  J.,  says : 
"By  reason  of  the  novelty  of  the  subject,  it  happened, 
that  the  first  Act  fell  short  of  the  object,  in  omitting 
to  secure  those  who,  bargaining  with  a  middle-man, 
had  not  an  opportunity  to  secure  themselves." " 

IIow  far  a  contractor  might  have  been  considered, 
or  might  have  become,  under  the  circumstances,  an 
agent  for  the  owner,  in  employing  mechanics  and  pur- 
chasing materials,  and  thus  have  bound  the  owner  as 
the  debtor,  and  made  a  case  for  the  application  of  the 
Act,  does  not  appear  to  have  been  considered. 

In  the  Act  of  180G,  the  words,  "by  the  owner,  or 
owners  thereof,"  were  omitted,  and  "  the  lien  was  ex- 
tended to  all  cases  of  work  done,  or  materials  fur- 
nished, for  a  building,  whether  on  the  credit  of  the 
owner  or  not."^ 

The  Act  of  1806,  however,  did  not  expressly  speak 
of  a  contractor.     That  of  ISOS  pointed  more  distinctly 


'  3  S.  &  R.  542.     See  Carson  v.  Eoudinot,  2  Wash.  C.  C.  11.  33. 
M  W.  &  S.  204.  =•  Steinmetz  v.  Eoudinot,  3  S.  &  11.  543. 


62  WUO  MAY  HAVE  THE  LIEN. 

to  him,  in  its  provision  for  a  personal  action  against 
the  "chhtor,  his  executors,  or  administrators,"  as  dis- 
tinguished from  a  ficire  facias  against  the  dehtor  and 
owner  of  the  building,"  but  still  he  was  not  indi- 
cated by  that  name. 

In  the  Act  of  183G,  the  "contractor,  architect  or 
builder,  is,  for  the  first  time,  expressly,  introduced  into 
the  system,  and  recognised  as  an  important  party. 
His  name  is  required  to  be  inserted  in  the  claim,  and 
he,  of  course,  becomes  a  defendant,  with  the  owner. 

But  though  his  title  is  here  found,  for  the  first  time, 
in  any  enactment  upon  this  subject,  it  will  appear, 
from  the  cases  which  we  shall  hereafter  cite,  in  treat- 
ing of  the  parties  to  the  proceedings  by  which  the  lien 
is  enforced,  that  his  position  had  long  been  recognised 
in  the  courts. 

It  was  not,  however,  until  after  the  Act  of  1836, 
that  the  question  directly  arose,  whether  he  w^as  with- 
in the  benefit  intended  by  the  law^,  and  could,  him- 
self, file  a  claim  against  the  owner. 

In  a  decision  made  in  1842,  Gibson,  Ch.  J.,  in  de- 
livering the  opinion  of  the  court,  says :  "In  a  case  like 
this,  where  the  claimants  were  themselves  the  con- 
tractors, it  is  not  easy  to  comprehend  the  prayer  for 
direction,  that  a  claim  can  be  filed  only  against  the 
claimant  and  the  contractor  together. 

"  If  it  be  meant  to  show  that  the  plaintiff  had  no  right 
to  file  a  claim  at  all,  it  was  properly  put;  for  it  is  he 
who  has  found  the  labour  or  materials,  and  not  he  who 
has  ordered  it,  that  is  entitled  to  the  lien.  Were  the 
contractor  as  well  as  the  mechanic,  or  material  men. 


"VTHO  MAY  HAVE  THE  LIEN.  63 

allowed  to  file,  there  might  be  double  liens  and  possi- 
bly double  recoveries,  which  the  law  does  not  tolerate. 
By  reason  of  the  novelty  of  the  subject,  it  happened 
that  the  first  Act  fell  short  of  the  object  in  omitting 
to  secure  those,  who  bargaining  with  a  middle  man, 
had  not  an  opportunity  to  secure  themselves,"  "in  con- 
sequence of  which  it  was  displaced  by  the  Act  of  1806, 
which  provided  for  those  who  directly  furnished  mate- 
rials and  labour,  and  not  for  the  middle  man,  who  took 
his  own  security,  and  furnished  nothing  but  his  super- 
intendence and  skill  as  an  undertaker.  Indeed,  so 
different  is  his  position  as  a  contractor,  from  that  of  a 
claimant,  that  his  name  is  required  to  be  inserted  in 
the  claim  as  a  respondent.  The  plaintiffs,  therefore, 
had  no  right  to  file  for  any  thing  furnished  pursuant 
to  their  contract  as  undertakers;  though  they  might 
have  done  so  for  any  additional  work  or  material  di- 
rectly furnished  by  themselves."^ 

lu  the  case  of  Hoatz  v.  Patterson,  the  same  con- 
clusion was  reached.  Rogers,  J.,  in  delivering  the 
opinion  of  the  court,  says : — "  The  point  is  not  new,  for 
it  has  been,  already,  virtually  decided  in  Jones  v. 
Shawan,  (4  W.  &  S.  257.)  One  who  furnishes  nothing 
but  his  superintendence  and  skill  as  an  undertaker, 
has  no  right,  as  is  there  held,  to  file  a  lien  for  any 
thing  in  pursuance  of  his  contract,  as  such.  Although 
the  observations  of  the  Chief  Justice  seem  to  be  re- 
stricted to  a  superintendent  merely,  yet  the  case 
really  was,  in  every  essential  feature,  identical  witli 

1  Jones  V.  Shawan,  4  W.  k  S.  2G4. 


64  "vrno  :\rAY  have  the  lien. 

tills.  The  contractor  agreed  to  furnish  all  the  mate- 
rials and  erect  the  buildings  for  a  fixed  price,  and  it 
is  to  such  a  state  of  things  that  the  remarks  were  in- 
tended to  apply.  The  remark  that  he  who  found  the 
labour  or  materials,  and  not  he  who  ordered  it,  is  en- 
titled to  the  lien,  applies  in  all  its  force  here.  It  is 
not  intended  to  deny,  that  where  there  is  a  special 
contract,  a  person  who  furnishes  materials  or  finds 
labour,  may  have  a  lien  against  the  buildings  notwith- 
standing; but,  can  the  same  individual  stand  in  the 
double  character  of  contractor  and  material  man? 
We  see  no  good  reason  that  he  should.  If  he  is  en- 
titled to  file  a  lien,  it  must  be  when  the  contract  is 
made;  for  it  is  very  plain,  that  nothing  that  he  can 
do  afterwards,  can  alter  his  position,  nor  can  he,  under 
the  pretext  that  he  furnished  the  materials,  as  well  as 
superintended  the  work,  burden  the  property  with  a 
double  lien.  What  is  it  to  the  owner,  in  what  way 
he  procures  the  materials  or  finds  the  labour,  whether 
it  be  by  purchase,  or  out  of  his  own  stores;  whether 
by  his  own  labour,  or  the  labour  of  others  whom  he 
hires  for  that  purpose?  The  owner  has  a  right  to 
take  it  for  granted,  when  there  is  no  stipulation  to  the 
contrary,  that  the  contractor  is  satisfied  with  the  se- 
curity for  the  faithful  performance  of  the  contract ;  for 
when  the  bargain  is  made,  or  before  he  commences  the 
worlv,  is  the  proper  time  to  exact  real  or  personal  se- 
curity, if  he  requires  it,  or  to  depend,  as  he  may  in 
many  cases,  with  confidence,  on  the  known  ability  and 
integrity  of  the  owner.  As  this  case  does  not,  as  we 
apprehend,  come  within  the  mischief,  we  are  unwilling 


WHO  MAY  HAVE  THE  LIEX.  65 

to  extend  its  operation  by  construction ;  for,  without 
being  additionally  burdened,  already,  are  owners,  de- 
sirous of  improving  their  estates,  exposed  to  great 
risks,  which  can  only  be  avoided,  if  at  all,  by  extreme 
care  and  great  caution. 

"The  argument  of  the  plaintiffs  counsel,  also  adds 
strength  to  this  view  of  the  law,  as  he  has  clearly  shown 
the  difficulty  of  setting  down  the  exact  time  when 
each  item  is  furnished  for  the  work  or  labour  per- 
formed; a  condition  expressly  enjoined  by  the  Act, 
and  held  essential  in  several  cases.  In  the  case  in 
hand,  there  is  no  colour  for  the  suggestion,  (even  if 
that  would  alter  the  law,)  that  the  contractor  was  en- 
gaged in  the  business  of  supplying  materials,  or  that 
the  work  was  performed  by  his  own  hands.  The  ma- 
terials were  obtained  by  purchase,  as  they  were  need- 
ed, or  in  the  w^ay  provided  in  the  agreement.  He 
hired  master-workmen,  as  the  master-mason,  for  in- 
stance, to  perform  the  labour,  he  being  responsible  for 
the  whole,  and  they  acting  under  his  superintendence 
and  direction.  This  is  mentioned  as  an  ingredient  in 
the  case,  although,  as  before  observed,  it  v/ould  make 
no  difference,  in  principle,  even  if  he  had,  in  whole  or 
in  part,  furnished  the  materials  from  his  own  stores. 
There  would,  in  either  case,  be  the  same  inconveni- 
ence arising  from  double  liens  and  double  recoveries, 
and  the  same  incongruity,  in  the  same  person  being 
both  plaintiff  and  defendant.  It  would  present  a  cu- 
rious spectacle  of  legal  incongruity,  if  the  master- 
mason,  for  example,  should  file  his  lien  against  the 
owner  and  the  contractor ,  and  the  ccntractor  &\\ou\Ol  also 


G6  VrUO  .A[AY  HAVE  THE  LIEN. 

file  his  lien  against  the  owner,  for  the  same  claim.  But 
this  is  the  effect  of  the  position  contended  for.  It  is 
impossible,  however,  to  believe  that  the  legislature 
ever  contemplated  such  a  legal  absurdity."^ 

In  Bolton  v.  Johns,  also,  Gibson,  C.  J.,  says: — "I 
mean  not  to  go  into  a  formal  defence  of  those  deci- 
sions ;  but  if  ever  human  statute  disclosed  an  intention 
not  to  Ijc  mistaken,  that  statute  disclosed  an  intention, 
that  the  contractor  whom  it  ordered  to  stand  as  a  re- 
spondent, should  not,  in  any  case,  assume  the  atti- 
tude of  a  demandant.     And  there  was  cogent  reason 
why  he  should  not;  for,  unlike  those  who  dealt  with 
him  as  a  middle-man,  he  had  an  opportunity  to  secure 
himself  by  his  contract  with  his  employer,  and  if  he 
omitted  to  embrace  it,  the  fault  was  his  own.     It  was 
the  frequency  of  loss  sustained  by  mechanics  and  deal- 
ers, in  consequence  of  the  employment  of  this  kind  of 
agent,  which  first  induced  the  legislature  to  give  them 
a  lien  on  the  building;  for  if  the  owner  of  the  ground 
had  continued  to  be  his  own  master-builder,  as  he  was 
in  the  primitive  days  of  the  province,  those  who  dealt 
with  him  would  have  had  no  juster  claim  to  such  a 
lien,  than  the  ploughman  of  another's  field  would  have 
to  a  lien  on  the  crop.     It  was  not  the  merit  of  the  con- 
tractor, but  the  loss  he  occasioned,  that  gave  rise  to 
the  system;  and  the  object  of  it  was,  not  to  secure 
him,  but  to  secure  those  who  had  else  been  put  in 
jeopardy  by  him.     But  if,  to  their  legitimate  liens,  he 
had  been  allowed  to  add  a  particular  lien  of  his  own, 

1  5  W.  &  S.  538. 


WHO  MAT  HAVE  THE  LIEN.  67 

there  would  have  been  a  scuffle  between  him  and  the 
furnisher  of  the  labour  or  material,  for  the  pay,  in 
which  the  court  would  have  been  employed  to  deter- 
mine, not  whether  the  article  had  been  furnished  on 
the  credit  of  the  building,  but  whether  the  contractor 
had  made  it  his  own  by  having  paid  for  it;  and  that 
would  have  involved  a  variety  of  matter  of  account, 
set  off,  and  dealings  between  him  and  his  compe- 
titor." 1 

The  reasons  for  excluding  the  contractor  from  the 
benefit  of  the  law,  as  far  as  we  can  gather  them  from 
these  decisions,  are  numerous. 

He  does  not  supply  materials  or  perform  work,  but 
merely  orders  them.  He  furnishes  nothing,  himself, 
but  skill  and  superintendence,  for  which  no  lien  is 
given.  The  Act  contemplates  him  only  as  a  defen- 
dant in  the  proceeding,  and  not  as  a  plaintiff.  If  he 
is  allowed  to  file  a  claim,  double  liens  will  be  filed  for 
the  same  work  and  materials,  and  there  may  be  double 
recoveries.  He  shows  by  his  bargain  with  the  owner, 
from  whom  he  may  demand  security,  if  he  pleases, 
that  he  really  gives  no  credit  to  the  building.  If  he 
is  entitled  to  a  lien,  it  must  be,  when  he  has  made  the 
contract;  for  the  liability  of  the  owner  is  complete, 
then.  These  are  the  suggestions  of  the  judges  whose 
opinions  we  have  quoted. 

But  it  will  bo  observed,  that  it  is  not,  in  any  one  of 
these  cases,  put,  distinctly,  on  the  ground,  that  iio  one 
can  file  a  claim,  whose  work  is  done,  or  materials  fur- 

'  5  B.  150. 


08  WUO  .A[AY  HAVE  THE  LIEN. 

iiislicd  under  a  s^pecuil  contract.  On  the  contrary, 
Piogcrs,  J.,  says:  ''It  is  not  intended  to  deny  that, 
where  there  is  a  special  contract,  a  per!<on  who  fur- 
nishes materials,  or  finds  labour,  may  have  a  lien 
against  the  buildings,  notwithstanding." 

How  that  doctrine  came,  at  length,  to  be  asserted, 
we  shall  show  in  another  chapter,  when  we  come  to 
spcalv  of  the  nature  of  the  debt  for  wdiich  a  claim  may 
be  tiled.  We  are,  now,  only  presenting  those  views  of 
the  subject  which  depend  upon  the  character  and  re- 
lations of  the  parties. 

There  was  one  further  step,  which  these  decisions 
rendered  inevitable,  and  that  was  soon  taken. 

It  is  said  in  Bolton  v.  Johns,  referring  to  the  pre- 
vious decisions  just  noticed:  "No  more  had  been  de- 
termined, than,  that  the  master-builder,  or  contractor 
for  the  building,  could  not  fde  for  his  services  and 
skill,  in  exclusion  of  the  mechanic  or  material  man, 
for  whom  alone  the  statute  had  provided." 

This  was  a  mistake.  In  Witman  v.  Walker,  the 
claimant  had  made  a  written  contract  to  do  all  the 
marble  work  for  a  house,  and  the  same  objection  was 
urged  against  his  claim,  as  had  prevailed  against  those 
of  the  contractors  for  the  whole  house.  The  court  cite 
the  cases  upon  which  we  have  commented,  in  this  con- 
nexion, and  say:  "It  is  not  easy  to  perceive  any  dif- 
ference, in  principle,  in  the  circumstance,  that  the  con- 
tract is  not  for  the  whole  building,  but  for  a  particular 
job  or  piece  of  work,  as  here,  to  put  up  the  marble 
work  of  two  houses,  and  furnish  marble  mantels.  The 
relation  of  the  parties  is  the  same,  and  similar  incon- 


WHO  MAY  HAVE  THE  LIEN".  69 

veniences  and  incongruities  would  ensue  to  those 
pointed  out  in  the  opinion  delivered  by  Mr.  Justice 
Rogers,  in  Jones  v.  Shawan,  if  the  same  individual 
might  stand  in  the  double  capacity  of  contractor  and 
material  man."^ 

These  decisions  were,  however,  all  rendered  inappli- 
cable by  the  Act  of  April  IGth,  1845,  which  declared 
that  the  Act  of  1836  should,  "according  to  the  true 
intent  and  meaning  thereof,  extend  to  and  embrace 
claims  for  labour  done,  and  material  furnished  and 
used,  in  erecting  any  house,  or  other  building,  which 
may  have  been  or  shall  be  erected  under  or  in  pur- 
suance of  any  contract  or  agreement  for  the  erection  of 
the  same,"  and  should  "be  so  construed;"  and  that 
"  no  claim  which  has  been  or  may  be  filed  against 
any  house  or  other  building,  or  the  lien  thereof,  or 
any  proceeding  thereon,  shall  be  in  any  manner  af- 
fected by  reason  of  any  contract  having  been  entered 
into  for  the  erection  of  such  buildings,  but  the  same 
shall  be  held  as  good  and  valid,  as  if  the  building 
had  not  been  erected  by  contract."  A  proviso,  how- 
ever, was  appended  to  the  enactment,  saving  from  its 
effect  any  case  theretofore  decided  by  the  Supreme 
court,  or  in  which  the  proceeds  of  the  sale  of  any 
real  estate  had  been  distributed  by  the  decree  of  any 
court,  from  which  no  appeal  had  been  taken. 

But  a  case  in  the  District  Court  for  the  city  and 
county  of  Philadelphia,  in  which  the  decision  was  made 
long  after  the  Act  of  1845,  seems  to  show  that,  though, 

'  9  W.  &  S.  187. 


70  AVIIO  MAY  HAVE  THE  LIEN. 

under  its  provisions,  the  contractor  or  sub-contractor 
may  file  a  claim,  he  cannot  use  it  against  those  whom 
he  employs.  In  that  case,  the  contractor  appeared 
before  the  Auditor,  and  claimed  his  2)J'o  rata  share  of 
the  fund.  The  court  say: — "This  contest  is  not  be- 
tween the  owner  and  contractor,  but  between  the  con- 
tractor and  the  mechanics  and  material  men,  with 
whom  7ie  dcaJt,  and  to  wliom  lie  is  personcdly  responsible. 

"  The  letter  of  the  statute  puts  all  the  lien  creditors 
under  it  on  the  same  footing,  directing  them  to  be 
paid,2)yo  rata,  when  the  fund  derived  from  the  Sheriff's 
sale,  and  applicable  to  their  claims,  is  not  sufficient  to 
pay  the  whole.  But  this  is,  manifestly,  unjust,  when 
extended  to  the  contractor,  whose  personal  liability 
would,  by  this  means,  be  substituted  for  the  substantial 
security  of  the  real  estate  of  the  owner;  or,  which  is 
the  same  thing  in  enect,  the  value  of  that  real  estate 
in  money  deposited  in  court.  This  works  the  very 
mischief  which  induced  the  enactment  of  the  original 
Act  in  1803,  and  has  kept  the  system  alive  ever  since. 

"  We  know  of  no  other  instance  in  which  this  ques- 
tion has  arisen.  Babb  v.  Reed,  5  Eawle,  151,  is  some- 
what analogous.  There,  a  number  of  persons  as- 
sociated themselves,  under  the  name  of  the  "West 
Chester  Lodge,  No.  42,  of  the  Independent  Order  of 
Odd  Fellows."  They  purchased  a  lot  of  ground,  which 
was  conveyed  to  Trustees,  for  the  benefit  of  the  asso- 
ciation. The  association  undertook  to  erect  a  Hall  for 
its  meetings,  several  of  the  mcml^ers  contril)uted  labour 
and  materials  in  its  construction,  and  third  persons 
furnished  assistance,  in  like  manner.      The  means 


WHO  MAY  HAVE  THE  LIEX.  71 

of  the  association  fell  short  of  the  cost  of  the  building. 
The  ground,  itself,  had  been  bought  on  credit,  and  a 
mortgage  caused  the  property  to  be  sold  by  the  sheriff. 
The  jDroceeds  were  brought  into  court  for  distribution. 
The  claimants  of  the  fund  consisted  of  two  classes :  1, 
of  members  of  the  fraternity;  2,  of  creditors,  who 
were  not  members.  All  the  claims  were  for  work 
done,  or  materials  furnished  for  the  construction  of 
the  building.  The  Supreme  Court  held,  that  the  whole 
of  the  said  claims  were  eml^raced  by  the  Mechanics' 
Lien  Act,  and  that  if  the  fund  was  adequate  to  pay 
the  whole,  it  ought  to  be  so  applied;  but  that  the 
claims  of  those  who  were  not  members,  were  entitled 
to  a  preference  over  the  claims  of  such  as  were  mem- 
bers ;  and,  it  appearing,  that  the  paj^ment  to  those  who 
were  not  members  would  al^sorb  the  entire  fund,  the 
decree  was,  that  they  only  could  be  paid. 

"  The  distribution  of  the  fund  in  the  case  before  us^ 
we  think,  should  be  made  upon  the  same  equitable 
principle.  Between  the  contractor  and  the  owner  of 
the  buildings,  unless  otherwise  specially  provided,  in 
their  agreement,  the  contractor  has  a  right  to  file  his 
claim  for  whatever  may  be  due  him.  But,  in  the  dis- 
tribution of  the  proceeds  of  a  sale  of  the  buildings,  the 
contractor  can  receive  nothing,  until  the  lifen  creditors, 
to  whom  he  is  personally  responsible,  have  been  paid 
in  full. 

"  The  exception  of  Jacol)  Showaker,  the  contractor, 
is,  therefore,  dismissed,  and  the  report  confirmed."  ^ 

^  Large  v.  Millettc,  12  Leg.  lut.  (>. 


72  TTIIO  MAY  HAVE  THE  LIEN". 

It  is  proper,  in  this  connexion,  to  refer  to  a  decision 
of  Lowrie,  J.,  in  the  District  Court  of  Allegheny  county, 
in  reference  to  the  relative  positions  of  the  contractor 
and  those  "whom  he  employs,  whether  sub-contractors 
or  otherwise. 

In  that  case,  the  owners  pleaded, — "  That  the  debt 
claimed  ought  not  to  be  levied  of  said  house,  because 
the  plaintiffs  were  sub-contractors,  under  one  J.  M., 
(impleaded  with  the  owners,)  wdio  had  undertaken 
to  erect  said  house  for  the  owners,  and  to  furnish  the 
materials,  and  to  receive  payment  therefor,  partly,  in 
merchandise,  and,  partly,  in  money,  in  one,  two  and 
three  years  after  the  completion  of  the  building." 
To  this  plea  the  plaintiff  demurred.  The  court,  in 
delivering  its  opinion,  says : — 

Secondly,  Are  sub-contractors,  in  the  erection  of  a 
house,  affected,  as  to  the  time  and  mode  of  payment, 
by  the  contract  made  between  the  owners  and  the 
builder  ? 

"The  law  creates  a  lien  ^for  all  debts  contracted 
for  work  done,  and  materials  furnished'  for  the  erec- 
tion of  the  house ;  and  this  phraseology  proves,  that 
this  lien,  like  all  analogous  liens,  is  founded  on  con- 
tract expressed  or  implied.  And  here,  contrary  to  the 
rule  as  to  other  liens,  the  law,  in  another  clause,  gives 
a  lien,  even  in  favour  of  a  sub-contractor.  On  what 
principle  is  it  founded? 

"  It  must  be  on  contract  with  the  owner,  either  di- 
rectly or  indirectly;  for  it  is  only  thus,  that  one  man 
can  ever  acquire  a  claim  upon  the  property  of  another. 
And,  in  this  w\ay,  the  connexion  is  plain.     The  owner 


VTHO  51  AT  HAVE  THE  LIEN.  73 

contracts  with  a  builder,  to  erect  a  house,  on  certain 
terms,  and  the  builder  makes  a  sub-contract  with  a 
material  man,  to  supply  the  materials.  The  chain 
of  relationship  consists  of  but  two  links,  the  second 
of  which  hangs  by  the  first,  and  will  bear  no  greater 
weight.  The  sub-contractor  comes  in  by  reason  of  his 
direct  contract  relation  to  the  builder,  and  the  right  of 
lien  of  the  former,  for  his  claim,  is^ro  ianto,  substitution- 
ary to  that  of  the  latter.  As  against  the  owner,  the 
terms  of  the  principal  contract,  and,  as  against  the 
builder,  the  terms  of  the  sub-contract,  limit  and  qua- 
lify the  lien  of  the  sub-contractor,  so  as  to  prevent  his 
claim  from  abating  the  terms  of  either  contract.  And 
it  is  because  the  lien  of  the  sub-contractor  is  by  way 
of  subrogation  to  the  right  of  the  builder,  that  the 
latter  is  made  a  party  to  the  proceeding. 

"The  justice  of  this  limitation  of  the  right  of  the 
sob-contractor  is  very  plain ;  for,  if  it  were  otherwise, 
no  man  could  ever  build  a  house,  with  any  certainty 
as  to  the  cost  of  it,  unless  he  employed  all  the  work- 
men, and  purchased  all  the  materials  himself.  He 
might  find  it  built  of  an  entirely  difierent  character 
from  that  contracted  for,  and  yet,  have  to  pay  the 
sub-contractor,  though  the  builder  could  have  no  claim 
upon  him.  He  might  contract  for  a  house  at  $1000, 
and  find  liens  established  against  it  for  $2000. 

"  If  such  were  the  case,  no  prudent  man  would  make 
a  contract  to  have  a  house  erected,  except  with  a 
builder  who  had  ample  means  to  secure  him  against 
liens,  and  such  men,  only,  could  obtain  the  most  desi- 
rable contracts.     The  allowance  of  any  lien  at  uU  to 


74  WHO  MAY  HAVE  tee  lien. 

a  sub-contractor,  is  a  special  privilege,  granted,  only, 
in  case  of  buildings;  and  it  is  not  unreasonable  to  re- 
quire him  to  look  to  the  principal  contract,  to  ascertain, 
whether  it  is  such  as  to  justify  him  in  becoming  a 
contractor  under  it. 

"The  argument,  that  the  law  and  the  principal 
contract  make  the  builder  the  agent  of  the  owner, 
proves  nothing.  Suppose  the  fact  to  be  so;  still  his 
agenc}^  is  only  special,  limited  by  the  terms  of  the 
contract.  He  is  to  employ  men  to  build  the  house,  in 
the  manner  and  on  the  terms  there  indicated.  For 
anything  beyond  that,  he  exceeds  his  authority,  and 
does  not  bind  his  principal.  If,  under  a  contract 
to  build  a  brick  dwelling  house,  he  erects  a  wooden 
stable,  I  do  not  see  how  he  or  his  sub-contractor  can 
claim  any  lien.  Yet  the  latter  could  do  so,  if  the  sub- 
contract were  not  dependent  on  the  principal  one. 

"  To  construe  the  law  as  is  contended  for  by  the 
plaintiffs,  would  be  to  place  the  owner  in  the  relation 
of  a  protector  to  all  those  who  contribute  to  the  erec- 
tion of  the  house.  But  the  law  treats  every  man  as 
capable  of  taking  care  of  himself.  It  constitutes  no 
relation  of  protection  or  dependence  among  men  who 
have  arrived  at  legal  discretion.  It  looks  only  to  their 
contract  relations,  and  adapts  its  remedies  to  the  en- 
forcement of  these ;  and  if  necessary  for  this  end,  it 
takes  hold  of  the  debtor's  effects  in  the  hands  of  other 
persons.  In  cases  like  the  present  it  does  more;  for 
it  gives  a  contingent  lien  on  those  effects,  in  advance 
of  their  being  earned."  ^ 

^  Campbell  v.  Seaife,  8  Leg.  Int.  74. 


WHO  MAY  HAVE  THE  LIEN.  75 

If  this  decision  be  the  law,  it  establishes  a  most  im- 
j)ortant  doctrine.  Every  person  employed  by  a  con- 
tractor is  presumed  to  have  seen  his  contract,  and  as 
against  the  owner,  and  his  house,  his  claim  cannot  rise 
beyond  it,  or  depart  from  its  terms. 

We  believe,  however,  that  this  decision  is  not  re- 
garded in  practice  or  usage.  And,  indeed,  the  cases 
which  we  shall  hereafter  cite,  in  treating  of  the  evi- 
dence which  the  claimant  must  adduce,  seem  to  con- 
travene its  principles.  They  appear  to  allow  the  sub- 
contractor or  master  mechanic  or  material  man  to 
prove  and  recover,  upon  the  contract  made  with  him, 
or,  if  there  be  no  such  contract,  upon  the  quayiium 
meruit.^ 

We  now  come  to  the  position  of  the  master  mechanic 
or  material  man,  who  is  supposed  to  have  made  no 
contract  for  any  particular  portion  of  the  building, 
which  would  bring  him  within  the  description  of  the 
contractor  or  sub-contractor,  of  whom  we  have  just 
treated,  but  who,  yet,  may,  notwithstanding,  be  em- 
ployed under  a  contract.  He  may  be  paid  by  the  daj^, 
or  by  measurement,  or  according  to  the  quantity  de- 
livered. 

There  has  never  been  any  question  about  the  right 
of  this  class  to  the  lien.  The  only  difliculty  has  been 
to  distinguish  them  from  the  next  class  of  journeymen 
and  common  hands  or  day  labourers. 

If  the  position  of  the  contractor,  under  tlie  Act  of 
1845,  leads  to  the  danger  of  multiplying  and  doubhng 

^  Sec  Post,  Cbaptcr  on  Evidence. 


76  WHO  MAY  HAVE  THE  LIEN. 

liens,  liow  mucli  more  would  arise,  if  every  individual 
whose  labour  or  materials  were  expended,  could  file 
a  claim.  The  day  labourer,  who  digs  the  foundation, 
or  carries  a  hod ;  the  carter  who  hauls  the  brick,  stone, 
lime  or  lumber;  every  one,  however  subordinate,  would 
add  his  mite  to  the  mass  of  incumbrance,  overwhelming 
the  premises.  The  costs,  alone,  w^ould  be  a  burden  not 
to  be  borne. 

It  was,  therefore,  settled,  at  an  early  period,  that 
there  was  a  class  of  subordinates,  employed  by  the 
master  mechanic  and  material  man,  who  could  not  fde 
a  claim.  But  it  has  been  no  easy  task  to  define  tlie 
limit  of  that  class; — to  say,  in  each  case,  who  is  the 
subordinate. 

It  was  held  in  Cobb  v.  Traquair,  in  the  District 
Court  for  the  city  and  county  of  Philadelphia,  so  early 
as  1819,  that  "only  the  principal  of  each  branch  or 
trade,"  had  a  lien.^ 

But  the  fullest  discussion  of  the  subject  is  found  in 
the  case  of  Jobsen  v.  Boden,  in  which  Jobsen,  the  con- 
tractor for  a  mill,  hired  Boden,  by  the  day,  to  work  as 
a  carpenter  and  millwright,  for  a  stipulated  price.  AVe 
give  the  decision  of  Bell,  J.,  at  length.  He  says : — 
"As  early  as  the  year  1819,  it  was  decided  by  the 
District  Court  of  Philadelphia,  that  a  journeyman  me- 
chanic, employed  in  working  on  a  building,  under  the 
original  contractor  or  master  mason,  could  not  file  a 
lien  against  the  erection,  under  the  Act  of  180G.  not- 
withstanding the  general  or  comprehensive  words  of 

^  1  Frank.  Inst.  Journ.  07.  See  also,  the  opinion  of  Randall,  J., 
Barnes  v.  Wright,  2  Wh.  106. 


TTHO  MAY  HAVE  THE  LIEN.  77 

the  statute,  which,  taken  literally,  would  seem  to  in- 
clude every  grade  and  class  of  workmen,  from  the  chief 
builder,  down  to  the  least  important  day  labourer; 
Cobb  V.  Traquair,  1  Frank,  Jour.  97.  The  doctrine 
was  repeated  by  Judge  Randall,  then  of  the  Common 
Pleas  of  Philadelphia  county,  in  Barnes  v.  AYright,  2 
Wh.  196;  and,  indeed,  it  seems  to  have  been  every 
where  recognised  by  the  profession,  as  a  well  estab- 
lished principle,  firmly  founded  in  reasons  of  public 
policy  and  convenience.  The  Act  of  16th  June,  1836, 
which  embodies  and  supplies  former  enactments  on 
the  subject  of  mechanics'  liens,  is  not  broader  in  its 
terms  descriptive  of  the  persons  entitled  to  create  a 
lien,  than  is  the  Act  of  1806.  It  cannot,  therefore, 
be  pretended,  that  the  latter  Act  enlarges  the  circle  of 
those  upon  whom  the  first  statute  conferred  the  pri- 
vilege of  lien,  by  admitting  to  a  participation  a  class 
of  workmen  not  before  contemplated.  Had  such  been 
the  intention,  the  legislature,  doubtless  acquainted 
with  the  prior  adjudications  and  the  prevailing  opi- 
nion on  the  subject,  would  have  taken  care  to  mani- 
fest it  by  unequivocal  language.  But  in  this  respect 
the  only  difference  between  the  two  enactments  is  that 
the  older  of  them,  after  naming  certain  trades  and  oc- 
cupations which  should  be  entitled  to  the  benefit  of 
its  provisions,  extends  them,  to  any  other  person  or 
persons  employed  in  furnishing  materials  for  or  in 
erecting  or  constructing  such  house  or  other  building; ' 
while  the  3-ounger,  rejecting  the  special  enumeration 
as  redundant  authorizes,  generally,  a  lien  for  the  pay- 
ment of  all  debts  contracted  for  work  done  or  mate- 


78  TTHO  ]\rAT  HAVE  THE  LIEN. 

rials  furnislied  for  or  about  the  erection  or  construc- 
tion of  any  building.  That,  in  this  feature  of  them, 
the  statutes  are  equally  extensive,  is,  indeed,  shown  by 
Savoy  and  Salter  v.  Jones,  2  Rawle,  343;  in  which  it 
was  held,  that  the  Act  of  180G  is  not  confined  to  the 
classes  of  persons  specially  enumerated  in  it,  but  em- 
braces all  persons  employed,  either  as  builders,  or  ma- 
terial men.  As,  then,  the  law  stood,  under  these 
enactments,  it  is  very  certain,  one  who  may  be  merely 
engaged  as  a  journeyman,  wms  not  within  their  spirit, 
though,  perhaps,  comprehended  by  the  letter.  It  is, 
however,  supposed  by  the  plaintiff  below,  that  a  change 
was  effected  by  the  5th  section  of  the  Act  of  IGth 
April,  1845,  (Dunl.  Dig.  951,)  which  declares,  that  the 
Act  of  1836  shall  be  construed  to  extend  to,  and  em- 
brace claims  for  labour  done,  and  materials  furnished 
and  used  in  erecting  any  house  or  other  building, 
which  may  have  been  or  shall  be  erected,  under  or  in 
pursuance  of  any  contract  or  agreement  for  the  erection 
of  the  same;  and  that  no  claim  which  has  been  or 
may  be  filed  against  any  house  or  other  building,  or 
the  lien  thereof,  shall  be  affected  by  any  contract 
having  been  entered  into,  for  the  erection  of  such 
building;  but  the  same  shall  be  held  as  good  and  va- 
lid, as  if  the  building  had  not  been  erected  by  con- 
tract. But  it  is  notorious,  that  the  object  of  this  de- 
claratory Act,  was,  not  to  extend  the  remedy  of  lien  to 
the  wages  of  subordinate  workmen,  but  to  correct  a 
supposed  error  of  judicial  decision,  committed  in  the 
cases  of  Hoatz  v.  Patterson,  5  W.  &  S.,  537;  and  Ha- 
ley V.  Prosser,  8  "W.  &  S.  133.     In  these  cases,  it  has 


tTHO  MAY  HAVE  THE  LIEN".  79 

been  determined,  that  one  who  undertook,  by  special 
contract,  to  erect  a  building,  for  a  gross  sum,  was  not 
within  the  purview  of  the  mechanic  lien  laws;  be- 
cause, by  his  agreement,  tlie  intention  of  the  contracting 
party  to  rely  upon  the  personal  security  of  the  owner, 
in  the  absence  of  a  contrary  stipulation,  is  manifested. 
It  is  perfectly  apparent,  from  the  tenor  of  the  Act  of 
1845,  that,  notwithstanding  the  general  words  relied 
on  by  the  plaintiff  below,  touching  all  claims  for  la- 
bour done  and  materials  furnished,  nothing  further 
was  intended,  than  to  extend  the  provisions  of  the  Act 
of  1836  to  actual  contractors,  whom  prior  decisions  had 
shut  out  from  its  benefits.  Indeed,  the  general  clause 
to  which  I  have  referred,  is  not  more  comprehensive, 
and,  therefore,  not  more  efficacious,  to  include  all 
classes  of  artisans,  than  the  language  employed  in 
the  Act  of  1836,  which,  as  I  have  said,  was  never 
thought  to  reach  persons  in  the  plaintiff's  position. 

"This  restricted  construction  seems  to  be  abso- 
lutely necessary  to  the  safety  of  the  proprietors  of 
newly  erected  buildings.  Since  the  Act  of  1845,  their 
property  is  exposed  to  a  double  lien,  for  the  same  work 
done  and  materials  furnished ;  one,  in  favour  of  the 
contractor  or  undertaker  of  the  erection,  and,  another, 
to  secure  the  master  workmen  employed  by  him. 
Were  the  plaintiff's  construction  of  the  statute  ad- 
mitted, to  these  would  be  superadded  the  lien  of  every 
individual  workman  engaged  l)y  the  principal,  even 
for  a  day,  or  to  the  extent  of  preparing  a  bed  of  mor- 
tar. This  would  soon  be  felt  as  intolerable.  IJefore 
the  Act  of  1845,  it  was  observed  in  Iloatz  v.  Patter- 


80  WHO  MAY  HAVE  THE  LIEN; 

son,  5  W.  &  S.  537,  that  owners,  desirous  of  improving 
their  estates,  are  exposed  to  great  risks,  which  can 
only  be  avoided,  if  at  all,  by  extreme  care  and  caution. 
To  increase  these  risks,  so  materially  as  we  are  now 
asked  to  do,  would  be  seriously  to  interfere  with  the 
growth  and  improvement  of  our  cities  and  towns, 
by  interposing  obstacles  to  the  march  of  meritorious 
enterprise,  and  thus,  eventually,  to  injure  the  work- 
man himself.  For  the  introduction  of  such  a  rule,  a 
distinct  manifestation  of  legislative  will  is  necessary. 
It  is,  in  our  apprehension,  far  better,  for  all  parties,  to 
leave  the  journeyman  operative  to  the  security  he 
most  commonly  relies  on,  the  personal  responsibility 
of  his  employer."^ 

But  what  is  the  criterion  of  the  position  which  ex- 
cludes the  mechanic  from  the  benefit  of  the  law.  In 
one  case,  a  master  brick-layer,  who  employed  hands 
to  do  his  work,  filed  a  claim,  which  was  opposed,  on 
the  ground,  that  he  was  working  at  two  dollars  a  day. 
But  the  court  was  of  opinion,  "  that  an  agreement,  to 
receive  a  stipulated  sum,  per  day,"  for  services,  would 
not,  "of  itself,  make  the  plaintiff  a  journeyman,  so  as 
to  deprive  him  of  the  lien." 

And  yet,  in  Jobson  v.  Boden,  the  claimant,  who  was 
a  carpenter  and  millwright,  not  working  under  a  mas- 
ter-workman, but  employed  by  the  contractor  for  the 
entire  mill,  was  excluded.  The  only  fact  appearing 
in  the  report,  which  distinguished  him  from  hundreds 
of  others  who  have  been  employed  by  contractors  and 

'  8  B.  4G3. 


TTHO  MAY  HAVE  THE  LIEN.  81 

retained  their  liens,  being,  that  he  was  hired  by  the 
day. 

These  are  all  the  cases  that  throw  any  real  light 
upon  a  subject  which  must,  hereafter,  give  much 
trouble,  and  require  distinctions  and  definitions  not 
yet  announced. 

There  is  another  question  which  has  been  made, 
which  affects  all  these  classes,  and  which  we  must 
not  pass  by.  It  is  not  so  likely  to  arise,  in  regard  to 
those  doing  work,  as  to  those  furnishing  materials;  but 
it  may  be  presented  as  to  either. 

The  Act  of  1806  gives  the  lien  to  certain  mecha- 
nics and  material-men,  by  particular  designation,  and 
to  "  any  other  person  or  persons  employed  in  furnish- 
ing materials  for,  or  in  the  erecting  and  constructing 
such  house,  or  other  building."  Are  this  Act  and 
those  which  have  since  been  passed,  to  apply  only  to 
persons,  whose  regular  and  ordinary  business  is,  to  do 
the  work,  or  furnish  the  materials  for  which  a  claim 
may  be  filed ;  or  may  any  one  avail  himself  of  the  law, 
without  reference  to  his  permanent  or  continuing 
trade  or  occupation  ? 

In  the  case  of  Savoy  v.  Jones,  a  man  filed  a  lien 
for  bricks  which  he  held  and  owned  and  had  furnished 
to  the  house.  He  was  not  a  brickmaker,  however, 
and  the  point  was  made,  that  he  could  not,  under  the 
Act  of  180G,  file  a  lien,  for  that  reason.  It  was  ar- 
gued, that  the  word  "employed,"  used  among  the  ge- 
neral words  of  the  Act,  meant  one  Avhose  business  it 
was  to  furnish  the  particular  material.  TIic  court, 
however,  sustained  the  lien.  Gibson,  Ch.  J.,  in  de- 
6 


82  WHO  MAT  HAVE  THE  LIEN". 

livering  the  opinion,  says : — "  A  lien  is  given  in  ge- 
neral and  comprehensive  terms,  to  every  one,  without 
distinction,  ^employed  in  furnishing  materials  for,  or 
in  the  erecting  or  constructing,  of  any  house,  or  other 
building : '  and  I  cannot  imagine,  why  none  but  regular 
dealers  in  the  article,  or  workmen  bred  to  the  parti- 
cular craft,  should  have  the  benefit  of  it.  We  have 
mechanics  Avho  can  turn  their  hand  to  anything ;  and 
there  is  the  same  reason  for  hj^pothecating  the  pro- 
duct of  a  bricklayer's  labour,  for  wages  earned  as  a 
carpenter,  as  there  would  be  for  wages  earned  in  his 
proper  vocation;  and  a  dealer,  pro  hac  vice,  would 
seem  to  be  as  much  within  the  reason  of  the  law,  as 
if  he  had  no  other  business."  ^ 

If  this  was  the  construction  of  the  Act  of  1806,  there 
can  be  no  difficulty  with  reference  to  that  of  1836, 
which  is  more  comprehensive,  still,  in  its  terms. 

1  2  R.  343. 


NATURE  OF  THE  DEBT  SECURED  BY  THE  LIEN.  83 


CHAPTER  II. 

OF  THE  NATURE  OF  THE  DEBT  SECURED  BY  THE  LIEN. 

The  Act  of  1803  gave  the  lien  in  respect  of  debts 
contracted  "for  or  by  reason  of  any  work  done,  or 
materials  found  and  provided/'  "for  or  in  the  erecting 
and  constructing"  of  any  dwelling-house  or  other 
building.  The  Act  of  1808  contains  the  same  ge- 
neral words.  That  of  1836  provides  for  "all  debts 
contracted  for  work  done,  or  materials  furnished  for 
or  about  the  erection  or  construction"  of  the  building. 

The  first  question,  that  arises  under  this  head  is, 
what  is  included  within  the  meaning  of  the  word 
"building"?  Being  a  word  of  more  comprehensive 
signification  than  "  house,"  or  "  dwelling-house,"  it,  of 
course,  includes  them,  and  is,  therefore,  no  doubt,  used 
alone,  in  the  latter  Act. 

It  may,  at  first  view,  appear,  that  a  consideration 
of  the  meaning  of  the  word  "building,"  would  be  more 
appropriate,  in  treating  of  "The  subject  of  the  lien." 
A  closer  examination,  however,  will  show,  that  the 
building  is  the  subject  of  the  lien,  only  incidentally,  and 
as  a  part  of  the  land ;  that  its  most  important  aspect 
is  in  affecting  the  land,  by  giving  rise  to  the  debt ;  and 
that  it  is  only  Ijy  reference  to  the  building,  that  the 
nature  of  the  debt  can  properly  be  defined  or  described. 

It  has  been  expressly  held,  that  a  church  is  within 


84  NATURE  OF  THE  DEBT 

the  meaning  of  the  Acts.^  And,  in  several  cases,  claims 
have  been  filed  against  buildings  erected  for  this  pur- 
pose." 

Claims  have,  also,  been  filed,  Avithout  any  objection, 
on  account  of  the  character  of  the  building,  against 
an  Odd  Fellows'  Lodge,''  a  School  House,"*  a  Brewery,^ 
a  Distillery,^  Stores  and  Warehouses,^  a  Theatre,*^  Mills 
of  various  kinds,^  a  Factory,^'^  a  Boiler  and  Engine 
House,^^  a  Tan  House,^^  a  Furnace,^^  a  Kitchen,^^  a 
Barn.^^  These  cases  have  not,  all  of  them,  it  is  true, 
the  force  of  express  decision,  but  they  serve  to  show 
tlie  usage  in  this  respect. 

There  are  other  cases  in  which  questions  have  arisen 
with  reference  to  the  ordinary  out-houses,  connected 
with  a  dwelling.     But  to  these  we  shall  refer  under 


^  Presbyterian  Church  v.  Allison,  10  B.  413. 
==  Beam  v.  First  Meth.  Ep.  Church,  5  Law  J.  286.    Noll  v.  Swine- 
ford,  G  B.  187.  Armstrong  v.  Ware,  8  H.  519. 
'  Babb  V.  Keed,  5  R.  159. 

*  Dickinson  College  v.  Church,  1  W.  &  S.  462,  Church  v.  College, 
3  id.  221. 

5  Gray  v.  Holdship,  17  S.  &  R.  413. 

*  Yearsley  v.  Flanigan,  10  H.  489. 

'  Bruner  v.  Sheik,  9  W.  &  S.  119.  McDonald  v.  Lindall,  3  R.  492. 
Croskey  v.  Coryell,  2  AVh.  223. 

*  The  case  of  the  Olympic  Theatre,  2  Br.  275.  Mitchell  v.  Evans, 
id.  3L9. 

»  Wademan  v.  Thorp,  5  W.  115.  Washburn  v.  Russell,  1  B.  499. 
Ilolden  V.  Winslow,  7  H.  452.  Keppcl  v.  Jackson,  3  W.  &  S.  320. 
Jobscn  V.  Boden,  8  B.  463.     Morgan  v.  Arthurs,  3  W.  140. 

">  Church  V.  Griffith,  9  B.  117.         "  White's  Ap.  10  B.  242. 

1^  Anshutz  V.  M'Clelland,  5  W.  487.    M'Clelland  v.  Herron,  4  B.  63- 

"  Hoatz  V.  Patterson,  5  W.  &  S.  537. 

^'  Hampton  v.  Broom,  1  M.  241.       "  Werth  v.  Wertb,  2  R.  152. 


SECURED  BY  THE  LIEN.  85 

another  head.  They  bear  upon  the  point,  whether  the 
erection  of  such  an  appurtenant,  could  subject  the  main 
building  to  the  lien,  rather  than  upon  their  position  as 
isolated  structures,  under  the  law,  were  the  claim  for 
work  done  upon  them,  only,  and  filed  against  them, 
alone. 

But  there  is  a  case  which  it  is,  perhaps,  proper  to 
mention  here. 

In  Barclay's  Appeal,  a  claim  was  filed  for  work  done 
for  and  about  the  erection  and  construction  of  a  build- 
ing "and  appurtenances."  The  Court  held  the  claim 
bad,  and  say:  "But  an  appurtenance  may  be  a  yard, 
an  alley,  a  cistern,  a  conduit  pipe,  an  ice-house,  a 
smoke-house,  a  privy,  a  stable  or  other  out-house,  dis- 
tinct from  the  principal  building  mentioned  in  the 
written  claim,  and,  consequently,  not  within  the  pur- 
view of  the  lien  laws."  ^ 

If  the  court,  by  this  decision,  without  reference  to 
the  question,  whether  such  houses  were,  properly,  ap- 
purtenances to  the  main  building  or  not,  meant  to  de- 
cide, that  as  isolated  structures,  they  were  not  within 
the  purview  of  the  lien  laws,  it  is  in  conflict  with  cer- 
tain of  the  decisions  we  have  mentioned,  at  least,  with 
that  of  Werth  v.  Worth,  in  which  a  claim  was  filed 
against  a  barn  for  work  done  to  it,  alone ;  and  upon  the 
sale  of  the  "plantation"  upon  which  it  was  erected, 
and  distribution  of  the  proceeds,  the  court  decided, 
"  that  the  lien  was  to  be  confined  to  the  building  erected 
and  the  land  covered  by  it,  with  all  the  necessary 

»  1  H.  49G.     But  see  Gaule  v.  Bilycau,  1  Casey,  523. 


86  NATURE  OF  TEE  DEBT 

means  of  enjojdug  it,  in  the  usual  way,"  and  appoint- 
ed a  commissioner  to  report  the  proportionate  value 
of  the  building,  in  reference  to  the  whole  tract. 

AVe  find,  in  earlier  cases,  a  claim  fded,  against  build- 
ings erected  by  or  for  the  Directors  of  the  Poor,  and  no 
objection  seems  to  have  been  made,  on  the  ground  of 
the  character  of  the  building.^  But  it  has  been,  since, 
expressly  decided,  that  the  public  houses  of  a  county, 
such  as  the  court  houses,  public  offices  and  public 
schools,  are  not  within  the  meaning  of  the  lien  laws. 
This  doctrine  is  not  based  upon  the  nature  of  the 
building,  with  reference  to  its  use,  or  dignity,  or  in 
respect  of  size  or  construction,  but  upon  grounds  of 
public  convenience  and  necessity,  which  would  pre- 
vent any  execution  against  such  edifices,  and,  there- 
fore, render  nugatory  any  claim  or  proceeding  there- 
upon.^ 

By  an  Act  of  April  IG,  1838,  the  provisions  of  the 
Act  are  extended  to  "wharf-builders  and  all  con- 
cerned in  the  making  or  constructing  of  the  same." 

By  an  Act  of  April  9  th,  1849,  which  applies  only 
to  the  counties  of  Columbia  and  Elk,  the  law  is  ex- 
tended "  to  every  fixture  in  and  about  iron  works  and 
mines,  and  to  every  bridge  and  building,  where  work  is 
done,  or  materials  furnished  in  the  construction  of  such 
fixture,  in  and  about  mines  or  iron  works,  bridge  or 
building,  for  any  corporate  body,  or  for  a  contractor 


^  Churcli  V.  Davis,  9  W.  304.     Davia  v.  Church,  1  W.  &  S.  240. 
^  Wilson  V.  The  Commissioners,  7  W.  &  S.  197.     Williams  v.  The 
Controllers,  6  H.  277. 


SECURED  BY  THE  LIEN".  87 

in  the  employment  of  a  corporate  body."  The  pro- 
vision is  restrained,  however,  to  cases  of  work  done, 
or  materials  furnished,  after  the  passage  of  the  Act,  or 
where,  having  been  done  before  the  passage  of  the 
Act,  a  lien  was  filed  within  six  months  after  the  last 
work  was  done,  or  the  last  materials  furnished.  The 
remedy  prescribed  for  such  a  lien,  unless  it  was  one 
existing  or  allowed  under  former  laws,  is  the  writ  of 
sequestration. 

By  an  Act  of  April  21,  1854,  the  Act  of  1836  and 
its  supplements  are  "extended  to  the  improvements, 
machinery  and  fixtures  erected  by  tenants  of  coal  lease 
estates,  on  lauds  of  others,  in  the  county  of  Schuylkill." 

By  an  Act  of  April  21st,  1856,  the  same  Acts  are 
"extended,  as  fully  as  the  same  are  now  applicable  to 
buildings,  to  every  steam  engine,  coal  breaker,  or  parts 
thereof,  pump-gearing,  hoisting-gearing,  fixture  or 
machinery,  in  and  about  mills  of  any  kind,  iron  or 
coal  works,  coal  mines  and  iron  mines." 

But,  without  reference  to  the  use,  size  or  dignity  of 
the  structure,  if  it  be  merely  personalty,  in  its  legal 
character,  as  to  the  parties  concerned,  it  will  not  be  a 
"building,"  within  the  meaning  of  the  law. 

In  Church  v.  Griffith,  the  property  of  lessees  for 
years  of  land,  on  which  they  were  erecting  a  shovel 
factory,  was  sold  by  the  sheriff  under  a  writ  o^  fieri 
facias.  Mechanics  who  had  furnished  bricks  and  cast- 
ings to  the  lessees,  for  the  stacks  and  furnaces,  claimed 
the  proceeds,  under  their  supposed  liens.  The  court 
say: — "In  Lemar  v.  Miles,  4  A\^atts,  3o0,  we  held, 
that  a  steam  engine,  set  up  by  a  lessee  of  salt  works, 


88  NATURE  OF  THE  DEBT 

might  be  seized  and  sold,  by  an  execution  creditor,  as 
personal  property.     In  that  case,  the  question  was,  in 
effect,  between  the  landlord  and  his  tenant,  who  bene- 
fited by  having  his  debt  paid  out  of  the  property ;  in 
this,  it  is  between  the  creditors  of  the  lessees,  some  of 
them  claiming  the  property  as  leasehold,  by  virtue  of 
mechanics'  and  material  men's  liens,  and  some  of  them 
claiming  it,  as  unbound  personal  chattels.     The  build- 
ing was  erected  on  a  lot,  under  a  lease  for  years ;  and, 
being  erected  on  a  chattel  estate,  it  was,  itself,  a  chat- 
tel; so  tliat  the  case  is  stronger,  than  if  it  were  be- 
tween the  lessor  and  the  lessee,  in  respect  to  whom, 
fixtures   for   manufacturing    purposes,    are   chattels, 
only,  for  the  encouragement  of  trade.      In   Dalzell 
V.  Lynch,  4  W.  &  S.  255,  a  lease  for  years  was  held 
to  be  legally  sold  on  a  fieri  facias,  without  inquisi- 
tion or  condemnation.     The  fixtures,  in  this  case,  are, 
consequently,  to  be  treated  as  chattels,  not  only,  in  re- 
gard to  the  lessor,  but  in  regard  to  every  one  else. 
By  the  Act  of  28th  of  April,  1840,  a  mechanic's  lien 
is  restrained  to  the  estate  which  the  contracting  owner 
had  in  the  soil;  but  it  is  not  perceived  how  a  chattel 
interest  in  the  soil  can  be  subject  to  such  a  lien  any 
more  than  how  it  can  be  subject  to  the  lien  of  a  judg- 
ment.    The  stat.  Westm.  2,  which,  indirectly,  gave 
the  judgment  creditor  a  lien,  gave  him  execution  of 
the  debtor's  lands,  which  subsequent  interpretation 
fixed  to  be  the  lands  held  at  the  time  of  the  judgment; 
the  Act  of  183G,  which  creates  the  lien  in  question, 
gave  the  mechanic  or  material  man  execution  of  the 
buildin";  to  v/hich  he  contributed  his  labour  or  mate- 


SECURED  BY  THE  LIEN".  89 

rials,  without  regard  to  the  quantum  of  the  estate,  held 
bjthe  contracting  owner;  and,  had  the  law  remained 
on  that  foot,  the  plaintiff,  in  a  case  like  the  present, 
would  have  recovered  the  fee  simple  value.  All  the 
statutes  on  the  subject  before  1840,  treated  the  estate 
to  be  bound,  as  a  fee.  The  scire  facias  prescribed  by 
the  Act  of  1836,  and  still  in  use,  calls  on  the  con- 
tracting owner  to  show  cause  why  the  debt  should  not 
be  levied,  not  of  his  estate  in  the  ground,  but  of  the 
building;  the  judgment  is,  that  it  be  levied  of  the 
building,  and  the  levari  facias  commands  the  sheriff 
to  levy  it  of  the  building.  The  notion,  that  a  chattel 
can  be  bound  by  the  lien,  separate  from  the  possession, 
has  not  been  familiar  to  us  all,  and,  consequently,  could 
scarcely  have  been  entertained  by  the  legislature.  The 
very  name  of  the  execution  shows,  that  it  was  not ; 
for  though  chattels  may  be  sold  on  a  levari  facias,  at 
the  common  law,  it  had  never  been  used  or  prescribed, 
in  Pennsylvania,  for  the  sale  of  any  thing  but  mort- 
gaged land.  The  common  law  form  of  the  writ  is  es- 
sentially different  from  the  form  of  it  prescribed  by 
the  Act  of  183G.  Moreover,  the  provision  for  setting 
off  and  selling  a  reasonable  curtilage,  with  the  build- 
ing, presupposes  the  existence  of  a  freehold  interest 
in  the  soil,  not  a  chattel  interest  on  the  surface  of  it. 
For  this  reason  it  was,  that  we  held,  in  Iloldship  v. 
Abercrombie,  9  Watts,  52,  that  the  lessee  of  a  lot,  who 
procured  a  l)uilding  to  be  erected  on  it,  for  purposes 
of  trade,  sul)jectcd  the  fee  simple  of  it  to  liens  for  la- 
bour and  materials;  and  that  the  chattel  interest  of 
the  lessee  was  not  the  thing  intended  to  be  bound. 


90  NATURE  OF  THE  DEBT 

The  supplemental  Act  of  1840,  was  produced,  not  by 
that  case,  but  by  Bickel  v.  James,  7  Watts,  9,  in  which 
it  had  been  determined,  that  a  sale  on  a  mechanic's 
lien,  fded  against  a  contracting  owner,  who  held  by 
articles  of  purchase,  divested,  not  only,  the  equitable 
estate  of  the  vendee,  but  the  legal  title  of  the  vendor. 
There,  however,  the  vendee  had  an  equitable  fee  to 
be  bound;  and  the  legislature  evidently  intended  to 
do  no  more,  than  subject  it,  exclusively,  to  the  lien; 
in  other  words,  to  contract,  rather  than  extend  the 
surface  of  its  operation.  The  principle  of  Iloldship 
V.  Abercrombie,  had  been  asserted  in  Anshutz  v. 
M'Clelland,  5  Watts,  487;  yet  the  legislature  did  not 
move  in  the  matter  till  four  years  had  gone  by;  and 
what  was  its  eventual  enactment?  No  more,  than, 
that  the  Act  of  1836  shall  not  extend  to  any  other  or 
greater  estate  in  the  ground,  on  which  any  building 
ma}'  be  erected,  than  that  of  the  person  in  possession, 
at  the  time  of  commencing  the  said  building,  and  at 
whose  instance  the  same  is  erected.'  Now,  though  a 
lessee  has  an  estate  in  the  land,  it  comprises  no  more 
than  his  interest  in  the  term,  and  gives  him,  merely,  a 
right  to  occupy  the  ground,  for  the  time  agreed,  which 
is  one  thmg,  and  not  a  right  of  property  in  the  chat- 
tels put  upon  it,  which  is  another.  At  most,  he  could 
only  sell  the  use  of  them,  for  the  term.  The  interest 
in  the  lease  is  a  right  of  occupancy,  and,  hence,  it  is  a 
chattel  real;  but  fixtures,  which  are  not  part  of  the 
freehold,  as  to  the  lessor  or  any  one  else,  are  chattels 
personal,  which  cannot  be  bound  as  a  part  of  the 
lessee's  estate  in  the  ground,  even  if  his  lease  were 


SECURED  BY  THE  LIEN.  91 

bound.  That  they  were  separate  property,  in  this  in- 
stance, is  proved  by  the  fact,  that  they  were  sold,  on 
writs  o?  fieri  facias,  by  antagonist  creditors.  Were  the 
tenant  himself  to  sell  his  'estate  in  the  ground,'  no 
more  would  pass  than  the  use  of  the  building  and  fix- 
tures; and  it  is  not  easy  to  see  how  the  sheriff  could 
sell  more.  By  selling  the  lease,  he  would  part  with  no 
more  than  what  he  had  derived  from  the  landlord ;  not 
the  chattels  procured  by  him  to  make  it  available.  At 
the  extinction  of  the  chattel  real,  in  the  one  case,  and  in 
the  other,  the  chattels  personal  would  remain  on  the 
ground  as  the  property  of  him  who  put  them  there. 
As  to  the  property  in  contest,  the  consequence  is,  that 
the  plaintiffs  would  not  have  been  more  secure,  with 
a  lien  on  the  leasehold,  than  they  are  without  it.  The 
auditor  made  a  distinction  between  such  parts  of  the 
castings  as  were  fixed,  and  such  as  might  come  under 
the  denomination  of  tools;  but  as  all  were  chattels, 
whether  fixed  or  loose,  it  was  a  distinction  without  a 
difference.  Against  the  landlord,  the  creditors  might 
treat  the  fixtures  as  chattels ;  and  they  have,  at  least,  an 
equal  right  to  treat  them  as  such,  against  those  who  do 
not  even  pretend  to  claim  them  as  freehold.  Strictly 
speaking,  the  question  is  not,  wdiether  the  estate  in 
the  lease  was  bound  by  the  lien,  but,  whether  the  ab- 
solute property  in  the  building  and  materials  was ;  yet 
as  the  cause  has  been  argued  on  the  broadest  ground, 
it  is  proper  to  say,  that  nothing  which  is  merely  lease- 
hold, is  now  within  the  purview  of  the  Act  of  183G. 
It  might,  periiaps,  be  thought  politic  and  proper  to  ex- 
tend such  a  lien  to  Ijoth;  but  to  do  so,  would  require 


92  NATURE  OF  THE  DEBT 

further  legislation,  which  we  are  incompetent,  if  we 
were  willing,  to  supply.  The  auditor's  report,  there- 
fore, was  properly  corrected."  ^ 

It  is,  perhaps,  proper  to  refer,  here,  to  several  prior 
cases,  growing  out  of  the  same  facts,  which,  appa- 
rently, conflict  with  this  decision.  In  these,  a  tanner, 
a  lessee  for  six  years,  erected  a  tan-house,  for  the 
purposes  of  his  trade.  In  the  latest  of  them,  the 
question  arose,  and  was  discussed,  what  estate  passed 
by  a  sale  under  a  mechanic's  claim,  for  work  and  ma- 
terials for  the  tan-house,  done  and  furnished,  at  the 
instance  of  the  lessee.  But  the  point  was  not  made  nor 
considered  that  arose  in  Church  v.  Griffith.  If  it  had 
been,  however,  a  distinction  might  have  been  drawn.^ 

In  Haworth  v.  Wallace,  Gibson,  Ch.  J.,  confirms  the 
decision  in  Church  v.  Griffith,  and  says,  in  regard  to 
M'Clelland  v.  Herron,  that  "  no  more  was  ruled  than 
that  a  levy  and  sale  of  a  term  did  not  pass  the  fee."  ^ 

In  "White's  Appeal,  the  sheriff,  under  a  writ  o?  fieri 
facias,  had  sold  the  interest  of  the  lessee  of  certain  coal 
mines,  with  the  boiler,  engine-house,  &c.,  which  he 
had  erected.  A  mechanic  claimed  a  priority,  under 
his  supposed  lien  for  work  done  upon  the  boiler  and 
engine-house.  The  lessee  held  under  a  lease  for  ten 
years  of  the  right  to  mine  coal,  with  the  privilege  of 
removing  the  structures  erected  by  him,  at  the  end  of 
the  term.     The  lessor  reserved  the  right  to  farm  the 


^9B.  118. 

^  Anshutz  V.  M'Clelland,  5  "W.  487.     Holdship  v.  Abercombie, 
9  W.  52.     M'CleUand  v.  Herron,  4  B.  63. 
»  2  H.  121. 


SECURED  BY  THE  LIEN.  93 

surfixce  of  the  land,  if  he  did  not  interfere  with  the 
operations  of  the  lessee.  The  court  held  the  structures 
in  question  to  he  only  personal  property,  and  refused 
to  recognise  the  lien.^ 

It  was,  perhaps,  with  a  view  to  meet  such  cases,  in 
the  locality  designated,  and  to  prevent  the  hardship  to 
the  mechanic  under  these  decisions,  that  the  Act  of 
April  21st,  1854,  extended  the  benefit  of  the  Acts  "to 
the  improvements,  machinery  and  fixtures  erected  by 
tenants  of  coal  lease  estates,  on  lauds  of  others,  in  the 
county  of  Schuylkill,  and  to  all  mechanics  and  mate- 
rial men  doing  work  and  furnishing  materials  there- 
for," with  the  proviso,  however,  that  the  lien  should 
only  extend  to  the  interest  of  the  tenants  therein. 

We  ought,  further,  to  observe,  however,  in  respect 
to  the  doctrine  of  these  cases,  that,  from  the  lan";ua2;e 
of  the  court,  a  different  ruling  would,  probably,  have 
been  made,  prior  to  the  Act  of  1840.  In  Church  v. 
Griffith,  Gibson,  Ch.  J.,more  than  intimates,  that  under 
the  Act  of  1836,  alone,  a  tenant  of  a  leasehold  in- 
terest could  bind  the  freehold,  by  erecting  buildings, 
even  for  the  purpose  of  his  trade. 

The  case  of  Gaule  v.  Bilyeau  ought  not  to  be  omit- 
ted in  this  connexion.  The  person  against  whom  the 
claim  was  filed,  in  that  case,  had  leased  the  premises, 
for  seven  years,  with  the  express  privilege  of  pur- 
chasing a  part  of  it,  upon  a  designated  ground  rent, 
at  any  time  within  three  years.  The  lessee  erected 
the  building  which  led  to  the  lien,  and,  very  soon 

>  10  B.  252. 


94  NATURE  OF  THE  DEBT 

afterward,  availed  himself  of  his  privilege  of  purchasing, 
and  received  a  deed  for  the  property.  The  court 
recognises  the  cases  to  which  we  have  just  referred, 
but  distinguishes  the  one  before  it  from  them. 
Lewis,  Ch.  J.,  who  delivered  the  oj)inion,  says: — 
"But,  in  this  case,  the  tenant  had  a  right,  by  the  con- 
tract, to  take  a  certain  part  of  the  premises,  particu- 
larly described,  on  ground  rent,  at  an  annual  sum,  fixed 
by  the  contract.  No  words  of  inheritance  are  neces- 
sary in  an  executory  contract.  It  is  sufficient,  if  it  be 
manifest  from  the  instrument,  that  a  fee  simple  was  in- 
tended to  he  conveyed.  This  was  sufficiently  indicated 
in  the  contract,  and  the  parties,  subsequently,  carried 
it  out,  by  a  conveyance  in  fee,  subject  to  the  ground- 
rent  agreed  on.  It  is  not  likely,  that  the  tenant  would 
have  erected  the  tavern-house,  and  out-buildings,  if  he 
had  had  no  certainty  of  enjoyment,  beyond  the  term 
of  seven  years.  It  was  his  right  to  a  conveyance  in 
fee,  that  induced  him  to  cause  the  erections;  and  it 
may  well  be  presumed,  that  it  was  also  that  right 
which  the  material-men  relied  on,  when  they  furnished 
the  materials  for  building  on  the  premises.  We  are 
of  opinion,  that,  at  the  commencement  of  the  building, 
the  tenant  had  an  equitable  estate  in  the  land,  which 
made  the  buildings  subject  to  a  mechanic's  lien."^ 

In  Walker  t\  Anshutz,  it  was  contended,  that  a  steam- 
boat was  within  the  Act.  The  court,  however,  ruled 
otherwise,  saying :  "  The  principle  which  governs  this 
case,  was  settled  in  Jones  v.  Shawhan.      If  I  can  con- 

'  Casey,  523. 


SECURED  BY  THE  LIEI^.  95 

tract  with  another,  to  sell  and  deliver  me  a  steamboat, 
at  a  day  certain,  there  is  no  reason  why  he  should  have 
a  lien  on  it,  after  having  parted  with  the  property,  un- 
conditionall}^,  whether  the  boat  be  a  new,  or  an  old 
one,  whether  it  be  finished  or  unfinished,  provided  it 
answers  the  description  in  the  contract;  or  whether  the 
vendor  had  himself  purchased  it  or  built  it,  with  his 
own  hands.  The  statute  was  not  made  for  such  a 
case.  Mechanics  and  material-men  may  follow  the 
product  of  their  labour  or  materials  wherever  they  can 
find  it.  But  the  owner  of  a  boat,  built  by  himself, 
sells  it  as  he  would  any  other  chattel,  on  the  personal 
credit  of  the  buyer,  where  he  expressly  takes  no  other 
security.  If  the  personal  responsibility  of  the  buyer 
prove  insufficient,  the  seller  has  made  a  bad  bargain, 
and  he  has  himself  to  blame,  for  not  having  taken  the 
proper  precaution;  but  he  cannot  resort  to  the  secu- 
rity provided  by  the  statute  for  a  diflerent  class  of 
creditors."  ^ 

Another  question,  that  often  arises,  and  to  which 
we  have  already  adverted,  is,  what  incidents  or  ap- 
purtenants to  a  house  are,  in  law,  such  portions  of  it, 
as  to  subject  the  house  to  a  lien  for  work  uj)on  them? 

Of  course  the  furniture  in  a  house  is  not  provided, 
for  or  about  its  "erection  or  construction."  And,  on 
the  other  hand,  the  doors  and  window  sashes,  undoubt- 
edly, are. 

In  an  early  case,  it  was  held,  that  a  copper  kettle 
or  boiler,  in  a  Ijrew  house,  was  part  of  the  realty,  and 

»  6  W.  &  S.  520. 


96  NATURE  OF  TUE  DEBT 

subject  to  the  lien;  and,  as  a  matter  of  course,  work 
upon  it  would  have  been  held  to  be  the  basis  of  a  debt, 
within  the  law.^  In  another,  it  was  held,  that  the  fur- 
nishing of  burr  millstones  for  a  mill,  constituted  ground 
for  a  claim.^  In  another,  work  done  upon  a  steam  en- 
gine, to  propel  a  steam  saw-mill,  was  held  to  be  within 
the  Acts.^ 

But,  in  the  case  of  the  Olympic  Theatre,  it  was  held, 
that  the  stage  and  scenery  were  not  subject  to  the  lien, 
and  that  work  upon  them  would  not  create  a  debt 
within  the  law.* 

A  reference  to  these  cases  will  show,  that  the  ques- 
tion, in  most  of  them,  was,  simply,  whether  the  particu- 
lar subject  upon  which  the  work  had  been  done,  was, 
or  was  not,  part  of  the  freehold, — realty  by  accession. 
If  it  be,  it  seems  right  that  it  should  not  only  pass 
by  a  sale  under  the  lien,  but  that  the  work  should  be 
treated  as  the  basis  of  a  claim. 

It  is,  perhaps,  proper,  merely,  to  notice  here,  the 
cases  and  the  legislation  in  reference  to  plumbing,  gas- 
fitting,  grates,  furnaces,  &c.,  of  which  we  shall  treat 
subsequently,  in  this  same  chapter.  They  ought  to 
be  governed  by  the  principle  just  suggested,  except 
where  it  is  excluded  by  the  express  words  of  some 
enactment. 

A  more  difficult  and  complex  question  arises,  where, 
what  is  claimed  to  be  an  incident  or  appurtenant  to 


^  Gray  v.  HoldsLip,  17  S.  &  R.  413. 

2  Warleman  v.  Thorp,  5  W.  115.       ^  Morgan  v.  Arthurs,  3  W.  140. 

*  2  Br.  285. 


SECURED  BY  THE  LIEX.  97 

the  house,  is  some  structure,  distinct,  and  more  or, 
less  remote  from  it. 

We  have,  already,  referred  to  Barclay's  Appeal,  in 
which  the  question  arose,  whether  a  claim  for  work 
done,  for  and  about  the  construction  of  a  building 
and  "appurtenances,"  was  good,  and  in  which  the 
court  say: — "But  an  appurtenance  maybe  a  yard,  an 
alley,  a  cistern,  a  conduit-pipe,  an  ice-house,  a  smoke- 
house, a  privy,  a  stable,  or  other  out-house,  distinct 
from  the  principal  building  mentioned  in  the  written 
claim,  and,  consequently,  not  within  the  purview  of 
the  lien  law." 

This  dictum  is  somewhat  in  conflict  with  other 
cases  in  the  same  court.  Such  a  question  had  not 
been,  expressly,  made,  before ;  but  several  previous  de- 
cisions show  what  the  general  construction  of  the 
law  had  been.  We  have,  already,  referred  to  some 
of  them,  bearing  indirectly  upon  the  subject. 

In  Burt  V.  Kurtz,  a  claim  was  filed  against  certain 
premises,  for  the  erection  of  a  dwelling-house,  rope- 
house,  rope-walk  and  stable,  and  it  was  allowed.^  In 
Iloatz  V.  Patterson,  a  lien  was  claimed  for  erecting  a 
furnace,  casting-house,  stables  and  houses  necessarily 
appurtenant  thereto,  and  no  objection  was  made  on 
that  score.^ 

In  Lauman's  Appeal,  the  claim  was  against  a  two- 
storied  stone  dwelling-house,  Swiss-barn,  wagon-shed, 
wood-house  and  wash-house,  smoke-house  and  ice- 
house, upon  a  farm.     No  question  was  made  as  to  the 

»  5  R.  24G.  *  5  W.  &  S.  5;J7. 

7 


98  NATURE  OF  THE  DEBT 

right  to  a  lien  for  work  upon  such  buildings.  The 
only  question  was,  whether  it  was  not  a  case  for  ap- 
portionment. The  court  held  it  was  not,  and  say: 
"But  the  reason  of  the  enactment  shows  it  was  in- 
tended to  apply,  only  to  the  case  of  separate  and  dis- 
tinct erections,  capable  of,  and  intended  for  a  distinct 
possession  and  enjoyment;  looking  to  the  mischief  to 
be  remedied,  it  is  very  obvious,  the  statute  has  no  refe- 
rence, whatever,  to  the  necessary  buildings  of  a  farm, 
forming  component  parts  of  a  common  property,  and 
which,  for  every  beneficial  purpose,  must  be  occupied 
as  one  possession.  The  dwelling-house,  barn,  wagon- 
house,  and  other  similar  erections  are  but  appendages 
of  the  farm,  the  principal  thing,  and  built  expressly 
with  a  view  to  its  more  perfect  enjoyment.  They  are, 
therefore,  to  be  considered  as  constituent  parts  of  a 
whole,  incapable  of  separation,  without  injury;  and, 
consequently,  were  intended  for  a  several  occupation. 
Such  buildings,  are,  in  every  particular,  unlike 
those  which  apparently  joined,  are,  in  fact,  completely 
divided,  each,  of  itself,  constituting  an  object  of  dis- 
tinct proprietorship  and  encumbrance.  The  one  is 
aggregate;  the  other  is  segregate.  The  propriety  of 
apportionment  among  the  latter  is  manifest;  its  use- 
lessness,  as  applied  to  the  former,  is  not  less  so.  For 
the  reasons  given  it  is  apparent,  a  case  like  the  pre- 
sent was  not  within  the  contemplation  of  the  framers 
of  the  law.  Though  the  language  used,  taken  lite- 
rally, may  include  it,  yet,  being  without  the  circle  of 
the  mischief  to  be  cured,  it  is,  clearly,  not  embraced  by 
the  spirit  of  the  Act.     It,  consequently,  remains  sub- 


SECURED  BY  THE  LIEN.  99 

ject  only  to  the  prior  statutes,  which  do  not,  impera- 
tively, call  for  an  apportionment."  ^ 

In  a  still  later  case,  an  old  house  was  altered  and 
added  to;  a  new  two-storied  back  building,  and  a  new 
smoke-house,  oven  and  privy  were  built.  The  court 
held  that  there  was  no  lien,  because  the  main  building 
did  not  present  a  case  of  new  erection  and  construction. 
If  it  had,  for  any  thing  that  appears  in  the  case,  no 
doubt  would  have  existed,  that  the  out-buildings  men- 
tioned were  appurtenances,  and  that  the  work  upon 
them  created  a  debt  which  was  a  lien  upon  the  entire 
premises,  jointly  with  the  work  upon  the  principal 
edifice.^ 

It  will  be  seen,  how  entirely  discordant  from  these 
cases  the  decision  in  Barclay's  Appeal  appears. 

But  in  a  case  in  the  District  Court  for  the  city  and 
county  of  Philadelphia,  its  doctrines  were  submitted 
to,  and  a  distinction  of  some  importance,  made.  The 
word  "appurtenance"  was  found  in  the  body  of  the 
claim,  but  a  bill  annexed  showed  that  an  ice-house  was 
meant.  The  court  say: — "It  is  true  that  the  Su- 
preme Court  intimates  that  an  ice-house,  being  an  out- 
house, distinct  from  the  principal  building  mentioned 
in  the  written  claim,  would  not  be  within  the  purview 
of  the  lien  laws.  But,  then,  that  involves  a  question 
of  fact,  whether  the  ice-house  in  question  is  distinct 
from  the  principal  building.  It  may  be  attached  to, 
and  part  of  it,  as  much  as  a  bath-house,  a  wash-house 
or  wood-house.    If  the  ice-house  in  question  l)e  disl inct 

»  8  B.  473.  ^  In  Re  Howell,  Landls's  Appeal,  10  B.  379. 


100  NATURE  OF  THE  DEBT 

from  the  principal  building,  then,  on  the  trial,  plaintiff's 
bill  will  be  reduced,  if  it  is  not  a  lien ;  or,  at  all  events, 
it  is  there  only,  upon  the  ascertainment  of  the  true 
state  of  the  facts,  that  the  validity  of  this  lien  can  be 
truly  determined."^ 

In  the  case  of  Gaule  v.  Bilyoau,  the  oljjection  was 
made,  "  that  the  ten-pin  alley,  the  fence,  &c.,  were  out- 
houses, distinct  from  the  principal  building  mentioned 
in  the  claim,  and  were  not  within  the  purview  of  the 
lien  laws,"  and  the  case  of  Barclay's  Appeal  was  cited 
to  support  the  point.  But  Lewis,  Ch.  J.,  says : — "  The 
use  of  a  part  of  the  lumber  for  out-buildings  does  not 
defeat  the  lien."^ 

The  whole  subject  is  one  of  much  difficulty.  If  a 
detached  barn,  smoke-house,  ice-house  or  other  such 
structure,  be  a  "building,"  by  itself,  within  the  mean- 
ing of  the  Act,  and  it  alone  be  erected,  then  a  case 
similar  to  that  of  Werth  v.  \Yerth,'^  which  we  have 
already  noticed,  would,  perhaps,  arise,  and  the  building 
be  sold  with  so  much  ground,  only,  as  was  essential 
to  it, — a  most  awkward  and  inconvenient  result.  If 
it  be  a  mere  incident  or  appurtenance  to  a  main  struc- 
ture, and  as  such  may  lead  by  its  erection  to  a  claim 
against  the  entire  premises,  then  the  case  of  Werth 
V.  Werth  is  not  law,  and  an  extent  is  given  to  the 
claim  which  must  lead  to  very  embarrassing  questions. 
This  latter  view  seems  to  follow  from  the  lana;ua2;e  in 
Lauman's  Appeal. 


1  Killingworth  v.  Allen,  8  Leg.  Int.  12G. 

^  1  Casey,  523.  ^  9  r.  1.52. 


SECURED  BY  THE  LIEN.  101 

Where  sucli  a  building  is  in  contact  with  and  forms 
part  of  the  main  edifice,  less  difficulty  can  arise.  It 
may  be  considered  as  one  with  the  latter.  If  the 
former  be  attached  to  an  old  building,  it  is  a  mere 
addition,  not  the  subject  of  a  claim.  If  both  be  built 
together,  the  claim  is  joint  against  both. 

We  ought,  here,  to  notice  the  29th  section  of  an  Act 
of  1836,  extending  the  law  to  "persons  furnishing 
curbstone  for  the  pavement  of  any  building,  as  afore- 
said, within  the  city  and  county  of  Philadelphia." 

The  next  question  to  be  considered,  in  commenting 
upon  the  words  which  define  the  nature  of  the  debt 
for  which  a  lien  can  be  filed,  is,  what  is  meant  by  "  the 
erection  and  construction"  of  a  building.  And  this 
question  has  several  aspects  of  much  importance. 

It  is,  often,  very  difficult  to  draw  a  distinction  be- 
tween a  mere  alteration  or  repair  of  an  old  building, 
and  the  "erection  and  construction"  of  a  new  one,  in- 
tended by  the  Act.  A  lien  is  not  given  by  the  Act 
in  case  of  mere  repairs, — adding  to  or  altering  a  build- 
ing. 

Some  of  the  judges  have  endeavoured  to  express 
this  distinction  by  abstract  rules. 

In  the  case  of  the  Olympic  Theatre  it  was  held,  that 
"if  the  principal  part  of  a  building  is  torn  down  and 
rebuilt,  upon  a  liberal  construction  of  the  Act,  it  ought 
to  be  considered  as  creating  a  lien."^ 

Ill  the  case  of  Armstrong  v.  Ware,  Lowrie,  J.,  says : 
— "  Where  the  structure  of  a  building  is  so  completely 

'  2  Br.  284. 


102  NATURE  OF  THE  DEBT 

changed,  that,  in  common  parlance,  it  may  be  properly 
called  a  new  building,  or  a  rebuilding,  it  comes  within 
the  lien  law."  ^ 

In  Driesbach  v.  Keller,  Sergeant,  J.,  says: — "But 
a  substantial  addition  of  material  parts, — a  rebuilding 
upon  another  and  larger  scale,  constitutes  a  new  build- 
ing, even  though  some  portions  of  the  old  are  pre- 
served and  incorporated  in  the  new."" 

It  will  not  be  uninstructive  to  examine  the  cases 
in  which  either  the  opinion  or  the  leaning  of  the 
court  has  been  expressed,  with  reference  to  facts  bear- 
ing upon  this  question  of  building  or  repair. 

In  one  of  the  earlier  of  them  in  the  court  of  Common 
Pleas  of  Philadelphia  county,  the  owner  of  the  land 
purchased  a  building,  partly  brick  and  partly  frame, 
which,  after  undergoing  some  repairs,  was  moved  to 
the  premises  in  question.  A  cellar  was  then  dug 
under  it  and  walled  up,  a  new  chimney  built,  and  the 
house  newly  weather-boarded  and  plastered.  King, 
J,,  said:  "I  am  of  opinion,  that  the  case  disclosed  in 
the  report,  is  one  of  a  building  'erected  and  con- 
structed' within  the  true  intent  and  meaning  of  the 
Act  of  Assembly,  securing  to  mechanics  and  others 
payment  for  their  labour  and  materials.  The  frame 
originally  purchased  by  Burling  was  a  mere  shell, 
and  required  all  the  labour  and  materials  of  the  lien 
creditors  to  make  it  a  habitation  for  man.  It  has 
been  held,  that  'if  the  principal  part  of  a  building  is 
torn  down  and  rebuilt,  upon  a  liberal  construction  of 

1  8  H.  520.  2  2  B.  79. 


SECURED  BY  THE  LIEN.  103 

the  Act,  it  ought  to  be  considered  as  creating  a  lien.' 
{^Case  of  Olympic  Theatre^  2  Browne,  284.)  The  case 
here  contempUited  is  a  rebuilding  on  the  same  site. 
If  a  frame  removed  from  one  lot  to  another,  at  a  dis- 
tance, that  is  newly  weather-boarded  and  plastered, 
has  a  cellar  dug  and  walled  under,  and  a  chimney 
erected  in  it,  is  not,  for  the  principal  part,  ^rebuilt,'  I 
am  at  a  loss  to  understand  what  is  so. 

" But  this  is,  substantially,  a  new  building;  the  skele- 
ton only  of  an  old  one,  removed  from  its  original  site, 
entering  into  its  composition.  If  new  materials  had 
been  used  in  making  the  frame,  although  prepared  off 
of  the  lot  the  building  was  intended  to  stand  upon,  no 
one,  from  the  circumstance,  would  have  questioned 
the  lien  of  the  mechanics.  Now,  what  difference  can 
it  make,  in  point  of  common  sense,  if,  instead  of  pre- 
paring a  new  frame  for  his  house,  a  party  purchases 
one  ready  made,  and  which  had  been  erected  on  a 
former  occasion,  and  at  a  different  place.  None,  I 
apprehend,  capable  of  producing  the  result,  that  in 
the  former  case  the  mechanics  engaged  in  the  building 
shall  have  a  lien  on  the  building  for  their  labour,  and 
in  the  latter  not.  This  Act  of  Assembly  ought  to  re- 
ceive a  liberal  construction  in  favour  of  the  meritorious 
class  of  citizens,  the  just  claims  of  whose  industry  it 
is  intended  to  secure.  The  case  disclosed  by  the  re- 
port is  one  fairly  coming  within  its  provisions,  and  a 
decision  of  it  in  favour  of  the  lien  creditors,  does  not 
disturlj  the  doctrine,  that  for  partial  repairs  no  lien  is 
created."  ^ 

'  I'urling's  Ap.  1  Ash.  377. 


104  NATURE  OF  THE  DEBT 

In  another  case,  in  the  Common  Pleas  of  Lancaster 
county,  it  appeared  that  a  large  building  was  erected 
for  a  public  store  house,  subsequently  used  as  a  tan- 
nery, and  then  as  an  academy.  It  was  sold,  and  the 
land  on  which  it  stood  was  divided  into  seven  lots, 
and  purchased  by  seven  different  persons,  six  of  whom 
built  six  adjoining  dwelling-houses,  by  tearing  out 
the  wood  work  of  the  old  structure,  except  the  joists 
and  roof,  pulling  down  the  whole  of  the  front  wall, 
running  up  new  brick  front  and  division  walls,  and 
making  new  windows,  doors,  chinmeys,  &c.  These 
were  held  to  be  new  erections/ 

In  Driesbach  v.  Keller,  a  new  story  was  added  to 
a  one  story  house,  which  was  lengthened,  by  the  erec- 
tion of  a  two  story  addition,  the  whole  being  twice  the 
front  of  the  old  house.  It  was  covered  with  a  new 
roof,  communications  were  made  within,  and  a  shed 
or  porch  added,  around  the  house.  It  was  held  to  be 
within  the  Act.^ 

In  a  still  later  case,  the  building  in  question  was  a 
church.  The  roof  was  taken  off,  the  whole  build- 
ing was  taken  down,  except  three  brick  walls  about 
eighteen  feet  high,  viz.,  two  side  walls  and  one  back 
wall,  which  were  cut  away  about  one  half,  for  new 
window  frames;  the  old  materials  were  removed;  a 
new  front  wall  was  put  up,  with  a  new  foundation; 
the  side  walls  were  lengthened  eleven  feet,  with  new 
foundations,  and  the  whole  building  carried  up  eleven 
feet  higher,  making  it  three  stories  high,  having  a 

^  Gilbert  Hill's  Est.  3  Pa.  L.  J.  323.  '  2  B  79. 


SECURED  BY  THE  LIEIST.  105 

basement  room,  church  and  gallery.  Every  part  was 
built  on  a  new  and  more  extended  plan,  totally  dif- 
fering from  the  old  plan.  The  building  was  plastered 
on  the  outside,  so  that  no  appearance  of  the  old  build- 
ing remained.  The  written  contract  with  the  builder 
was,  to  make  certain  "  additions  and  alterations."  The 
l)istrict  Court  for  the  city  and  county  of  Philadelphia 
held  it  to  be  a  mere  alteration  and  addition,  but  the 
Supreme  Court  reversed  its  decision,  and  brought  it 
within  the  Acts.  Lowrie,  J.,  says : — "  The  law  gives 
a  lien  to  mechanics  on  'every  building  erected'  by 
them;  but  not  for  adding  to  or  altering  an  old  build- 
ing. The  parties,  in  their  contract,  call  this  work  ad- 
ditions and  alterations;  but  is  it  properly  so?  Every 
part  of  the  house  was  reconstructed,  except  a  part  of 
three  walls,  and,  even  in  them,  the  openings  are  new. 
There  must,  necessarily,  be  cases  wherein  it  is  difficult 
to  decide,  whether  work  done  is  to  be  regarded  as  the 
erection  or  as  the  alteration  of  a  building,  unless  we 
regard  as  an  alteration,  any  building  in  which  old 
materials  enter  as  an  element,  which  would  be  unrea- 
sonable. A  saddle  may  be  new,  though  old  stirrups, 
and  even  some  leather  of  an  old  one,  be  used  in 
making  it.  A  saw  mill  may  be  new,  though  it  has  an 
old  water-wheel  or  forebay. 

"Where  the  structure  of  a  building  is  so  completely 
changed,  that,  in  common  parlance,  it  may  be  properly 
called  a  new  Imilding  or  a  rebuilding,  it  comes  within 
the  lien  law.  This  is,  sometimes,  difficult  to  decide, 
and  then  it  must  be  left  to  the  jury.  Under  the  evi- 
dence, here,  the  court  might  have  decided,  that  it  is  a 


lOG  NATURE  OF  THE  DEBT 

case  of  a  '  building  erected/  within  the  meaning  of  the 
lien  law,  and  ought  not  to  have  ordered  a  nonsuit."  ^ 

On  the  other  hand,  in  Miller  v.  Oliver,  the  raising 
of  a  frame  building,  and  putting  under  it  a  basement 
story  of  stone,  was  held  not  to  be  an  erection  or  con- 
struction." 

And  in  Perigo  v.  Vanhorn,  the  front  and  back  of  an 
old  three-story  house  were  taken  down  to  the  first  story, 
and  a  new  brick  front  and  back  run  up,  four  stories 
high,  with  new  windows,  frames  and  sashes.  The  par- 
titions, stairways,  and  chimneys  were  taken  out,  the 
floors  repaired,  and  new  door-frames  put  in.  The 
change  made  the  house  five  stories  high,  the  two  upper 
stories  being  entirely  new.  A  four-story  addition  was 
made,  and  the  roof  over  the  whole  was  new.  It  was 
held  not  to  be  within  the  Act."^ 

This  was  a  much  stronger  case  in  favour  of  the  me- 
chanic, than  Armstrong  v.  Ware,  and,  if  it  had  come 
before  the  Supreme  Court,  as  that  did,  the  decision  of 
the  District  Court  for  the  City  and  County  of  Phila- 
delphia might  have  been  reversed. 

In  the  case.  In  re  Howett, — Landis's  Appeal,  the 
roof  of  an  old  house  was  propped  up,  and  the  front 
wall  taken  down  and  rebuilt  on  a  new  foundation, 
outside  of  the  old  one.  A  new  roof  was  then  put  on. 
The  whole  inside  work  was  taken  out,  except  the 
floors,  and  the  chimneys  were  taken  down  to  a  point 
below  the  garret  floors.  New  door-ways  were  made, 
and  new  work  was  put  in  the  old  doors  and  windows. 


1  Armstrong  r.  Ware,  8  Leg.  Int.  124,  8  H.  520. 

2  8  W.  514.  '  2  M.  359. 


SECURED  BY  THE  LIEN.  107 

The  back  and  side  walls,  the  floors,  and  the  founda- 
tions of  the  old  house  remained.  Adjoining  the  house, 
a  new,  two-story  back  building  was  erected,  without 
a  cellar,  and  a  new  smoke-house,  oven  and  privy. 
The  family  removed  from  the  house  during  the  work. 
Coulter,  J.,  in  delivering  the  opinion  of  the  court,  held 
this  to  be  a  mere  alteration  and  addition.  He  says : 
"If  repairing  an  old  house  is  within  the  Act,  where 
is  the  line  of  distinction  to  be  drawn?  Will  making 
a  new  door  or  partition  give  the  mechanic  and  mate- 
rial-man a  lien  on  the  whole  building  and  lot  ?  IIow 
much  of  the  old  house  must  be  pulled  down,  and  of 
what  extent  shall  the  repairs  be?  Or,  does  the  Act 
include  every  material  repair? 

"  These  are  questions  which  the  statute  furnishes  no 
indication  of  a  criterion  to  judge  by,  and  where  ju- 
dicial discretion  and  experience  would  be  at  fault. 
There  are  expressions  in  the  opinion  of  this  court,  in 
the  case  of  Driesbach  v.  Keller,  delivered  by  Judge 
Sergeant,  which  would  seem  to  include  repairs  within 
the  meaning  of  the  statute.  But  we  look  beyond  the 
opinion  to  the  case  itself,  Avhich  was,  in  fact,  the  erec- 
tion of  a  new  house.  There  was  a  small,  one-storied 
house  on  the  lot,  and  the  owner  built  a  new,  two-sto- 
ried house  alongside  of  it,  and  took  off  the  roof  of  the 
one-storied  tenement,  raised  it  to  two,  roofed  it,  along 
with  the  new  one,  and  also  new  weather-boarded  them. 
Now,  there  was  a  new  house  built,  into  which  the 
owner  removed,  wliilst  the  old  one  was  being  made 
part  of  the  new.  It  is  more  consonant  to  reason,  to 
hold,  that  the  little  old  one  followed  the  condition  of 


108  NATURE  OF  THE  DEBT 

the  new,  than  that  the  hargo,  new  one  followed,  the 
fortunes  of  the  old."^ 

In  a  late  case  in  the  District  court  for  the  city  and 
county  of  Philadelphia,  Sliarswood,  J.,  in  delivering 
the  opinion  of  the  court,  says :  "  It  appeared  the  lien 
was  for  materials  furnished  towards  certain  additions 
and  improvements  made  to  a  large  Hotel,  at  the  corner 
of  Broad  and  Callowhill  streets.  A  two-story  wing 
for  a  barber's  shop  was  put  up  at  one  end,  and  an  ex- 
isting wing,  at  the  other  end,  was  somewhat  enlarged, 
and  a  new  roof  was  put  on  the  entire  building.  The 
plaintiff's  lumber  went  to  all  parts  of  the  work,  and 
his  claim  was  filed  ao;ainst  and  included  the  whole 
building.  An  undisputed  fact,  and  which  seems  almost 
decisive,  was,  that  the  building  was  occupied  and  the 
business  carried  on  while  the  improvements  were  going 
on.  If  the  lien,  in  this  case,  can  be  sustained,  then 
every  mechanic  who  puts  on  a  new  roof  may  have  a 
lien.  The  new  wing  does  not  seem  to  alter  the  case. 
There  might,  perhaps,  have  been  a  separate  lien  for 
that.  But,  here,  there  was  no  change  pretended,  in  the 
general  character  of  the  building,  as  from  a  dwelling 
to  a  store,  or  vice  versa,  which  was  considered,  in  some 
of  the  cases,  as  constituting  a  new  erection,  within  the 
Act  of  Assembly."^ 

In  most  of  these  cases,  the  court  decides  the  question 
of  new  erection  and  construction,  without  expressing 
any  doubt  about  its  being,  properly,  a  matter  for  its 
cognizance. 

1  10  B.  380.  2  soiifcii  ^^  Nelson,  13  Leg.  Int.  140. 


SECURED  BY  THE  LIEX.  109 

In  Perigo  v.  Yanhorn,  the  court,  indeed,  say: 
"  There  being  no  claim  for  an  issue,  here,  the  fact  is 
submitted  to  our  determination."  ^  But,  in  Armstrong 
V.  Ware,  the  court  below,  having  the  point  distinctly 
before  it,  says :  "  We  have,  heretofore,  decided,  that  the 
question,  whether  a  building  is  within  the  Acts  of  As- 
sembly relating  to  mechanics'  liens  or  not,  when  the 
facts  are  undisputed,  is,  necessarily,  a  question  of  law. 
To  hold  otherwise,  would  produce  the  result,  that  one 
mechanic  and  material  man  might  recover  from  the 
building,  while  another,  with  an  equally  good  claim, 
be  defeated  by  the  different  conclusions  of  two  diffe- 
rent juries.  This  would  be  a  monstrosity  in  jurispru- 
dence."" 

In  the  Supreme  Court,  Lowrie,  J.,  reversing  the  de- 
cision below,  says,  in  speaking  of  this  question :  "  This 
is  sometimes  difficult  to  decide,  and,  then,  it  must  be 
left  to  the  jury."  2 

In  the  later  case  of  Smith  v.  Nelson,  already  referred 
to,  the  same  judge  who  decided  the  case  of  Armstrong 
V.  Ware,  in  the  court  below,  with  the  views  of  the  Su- 
preme Court  just  mentioned,  before  him,  says:  "The 
authorities  appear  to  be  uncertain,  as  to  whether  this 
is  a  question  of  fad  or  of  laiv.  In  Armstrong  v.  Ware, 
(20  P.  S.  R,  519,)  in  which  this  court  had  decided  it 
to  be  a  question  of  law,  the  Supreme  Court  merely 
say,  'that,  where  the  structure  of  a  Ijuilding  is  so  com- 
pletely changed,  that,  in  common  parlance,  it  may  be 
properly  called  a  new  building  or  rebuilding,  it  seems 

'  2  M.  359.  »  8  Leg.  Int.  124.  "  8  11.  520. 


110  NATURE  OF  THE  DEBT 

within  the  Lien  Law.  This  is,  sometimes,  difficult 
to  decide,  and,  then,  it  must  be  left  to  the  jury.'  We 
do  not,  however,  consider  that  case  as  having  defi- 
nitel}^  repudiated  the  doctrine,  that,  wherever  the  facts 
are  found,  or  are  undisputed,  the  question,  whether 
an  alteration  is  of  such  a  character  as  to  constitute  a 
new  building,  is  a  question  of  law  for  the  court;  and 
that,  whether  it  is  easy  or  difficult  to  decide.  If  this 
be  not  so,  then  it  is  plain,  that  some  of  the  mechanics 
who  have  furnished  work  and  materials,  may  lose,  and 
others,  may  gain  a  verdict,  according  as  different  juries 
may  form  different  opinions  upon  the  same  state  of 
facts;  and  it  is  difficult  to  see,  how  the  court  can  so 
regulate  the  matter,  as  to  do  equal  justice  to  all  claim- 
ants, between  the  interfering  verdicts  of  different  juries. 
It  would  be  a  monstrous  solecism,  if  one  of  two  me- 
chanics, equally  meritorious,  should  be  decided  to  have 
a  lien,  and  the  other  not,  and  the  ground  be,  that  the 
same  building  was  considered  to  be,  in  the  one  case, 
within,  and  in  the  other,  without  the  provisions  of  the 
same  law." 

We  ought  not  to  leave  this  subject,  without  quoting, 
further,  the  remarks  of  the  judge  who  decided  these 
cases  of  Armstrong  v.  Ware,  and  Smith  v.  Nelson,  in 
the  court  below.  They  are  found  in  the  opinion  in 
the  former  of  the  two  cases,  and  may  serve  to  aid  in 
establishing  some  rules,  by  which  these  difficult  cases 
may  be  disposed  of  more  consistently.  He  says; — "  It 
will  be  difficult  to  lay  down  any  general  rule  on  the 
subject.  It  certainly  has  not  been  done  as  yet.  Every 
case  will  have  to  be  decided  upon  its  particular  cir- 


SECURED  BY  THE  LIEN".  Ill 

cumstances,  until  time  and  experience  shall  evolve 
some  general  criterion.  One  thing  seems  certain,  that, 
if  the  outward  appearance  of  the  old  building  remain 
unchanged,  however  great  the  interior  alteration  and 
addition  may  be,  there  would  be  nothing  to  put  pur- 
chasers upon  inquiry  for  liens,  and  such  a  case  would, 
clearly,  not  be  within  the  Act.  So  also,  though  the 
outward  appearance  be  that  of  a  new  house,  if  the 
shell  of  the  building  remain,  and  its  purpose  be  the 
same,  it  ought  not  to  be  considered  as  an  erection  or 
construction." 

A  question,  closely  analogous  to  the  one  just  con- 
sidered, arises,  even  in  the  case  of  a  new  house,  with 
reference  to  the  time,  when  work  must  be  done,  or 
materials  furnished,  so  that  they  may  be  considered 
as  done  or  furnished  for  or  about  its  erection  or  con- 
struction. The  work  may  be  done,  or  materials  fur- 
nished, so  long  after  all  other  parts  of  the  house  are 
finished,  as  to  be  treated,  merely,  as  done,  or  furnished 
for  an  addition,  not  for  a  part  of  the  continuing  work 
upon  an  unfinished  structure. 

In  the  case  of  the  Presbyterian  Church  v.  Allison, 
a  question  arose  as  to  bricks  used  for  building  a  wall 
or  curbing  around  the  basement  window  of  a  church. 
The  lien  was  sustained,  for  another  reason,  without  a 
direct  decision  of  the  question,  whether  that  was  such 
a  part  of  the  building,  as  to  be  held  to  be  work  done 
in  process  of  finishing  it.  The  court  say,  however, 
"  If  after  the  building  was  finished,  and  notice  given 
to  the  material-man,  an  application  was  made  for 
brick  to  lay  a  pavement,  or  build  a  helping  wall  to 


112  NATURE  OF  THE  DEBT. 

the  edifice,  that  would  furnish  a  question  not  existing 
in  the  case."  ^ 

And  in  Ilolden  v.  AVinslow,  the  court  say:  "Whe- 
ther the  hist  Avork  done  by  the  mechanic  was  part  and 
parcel  of  the  original  job,  or  not,  depended  upon  evi- 
dence, and  upon  the  finding  of  that  fact  the  lien  de- 
pended." "  The  question  is,  whether  the  topping  out 
done  by  the  mechanic  was  part  of  the  original  agree- 
ment, and  was  the  crowning-work  of  his  job,  or  not, 
and,  whether  it  was  done  in  due  time,  without  unrea- 
sonable delay,  by  consent  of  Winslow ;  or,  whether  it 
was  a  distinct  contract,  entered  into  after  his  first 
work  was  finished."^ 

But  we  refer,  for  the  rest  of  the  cases  bearing  upon 
this  point,  to  those  chapters  which  treat  of  the  com- 
mencement and  continuance  of  the  lion,  particularly 
the  latter. 

A  little  reflection  will  make  it  apparent,  that  the 
additional  or  extra  work,  so  separated  from  prior  work 
upon  the  same  building,  as  to  form  no  part  of  the  first 
erection  or  construction,  may  be,  in  one  case,  so  in- 
significant, in  respect  of  quantity,  or  importance,  as 
to  suggest  no  idea  of  a  second  erection  or  construction, 
but  may,  in  another  case,  be  half  the  work  upon  the 
house.  In  some  decisions,  the  intermission  has  been 
entirely  overlooked,  and  the  two  separated  periods  of 
work  regarded  as  one ;  in  others,  the  courts  have  been 
driven  to  the  necessity  of  declaring,  that,  of  the  same 


^  10  B.  41G. 

^  6  H.  162,  ana  see  Ilarker  v.  Conrad,  12  S.  &  E.  303. 


SECURED  BY  THE  LIEN.  113 

house,  there  may  be  two  commencements,  and  two 
distinct  erections  and  constructions. 

What  must  be  the  character  and  length  of  such  an 
interval,  in  order  to  sever  one  part  of  the  work  from 
another;  how  it  is  affected  by  change  of  title,  by  con- 
tract, and  by  other  circumstances,  we  will  discuss,  as 
far  as  the  cases  permit  us  to  do  so,  safely,  in  the  chap- 
ter referred  to. 

But  there  are  other  aspects  of  this  question  of  "erec- 
tion and  construction,"  which  remain  to  be  considered. 

The  Act  of  1803,  gave  the  lien  for  "work  done  or 
materials  found  and  provided  by  any  brick-maker, 
brick-layer,  stone-cutter,  mason,  lime-merchant,  car- 
penter, painter  and  glazier,  iron-monger,  blacksmith, 
plasterer  and  lumber-merchant,  or  any  other  joerson 
or  persons  employed  in  furnishing  materials  for  or  in 
the  erecting  and  constructing  such  house  or  other  build- 
ing." This  enumeration  includes  those  w^ho  do  work, 
those  who  furnish  materials,  and  those  who  do  both. 

The  words  of  the  Act  of  1806  were  precisely  the 
same  in  this  respect. 

It  will  be  seen,  that  so  much  of  the  clause  above 
cited  as  is  general,  refers  only  to  material  men,  and 
not  to  those  who  do  work  upon  the  building.  Only 
those  mechanics,  therefore,  who  were  expressly  enu- 
merated, could  have  filed  claims  for  work. 

It  was  held,  in  consequence,  in  early  cases,  that  the 
paper-stainer,  paper-hanger  and  plumber  were  not 
within  the  Act.^ 

'  Hurley  v.  Lybrand,  and  llowlcy  v.  Lybrand,  1  Frank.  Inst.  J.  97, 
Wh.  l>ig.  Title,  Mechanics'  Lien,  yl.  GG  &  G7. 

8 


114  NATURE  OF  THE  DEBT 

It  will  be  observed,  that,  in  this  particular  branch  of 
the  subject,  the  character  of  the  building,  and  what  is 
or  is  not  part  of  it,  or  appurtenant  to  it,  and  what  is 
realty  by  accession,  arc  not  involved.  The  nature  of 
the  work,  alone,  is  in  question. 

In  a  case  in  the  District  Court,  for  the  city  and 
county  of  Philadelphia,  the  peculiarity  of  the  earlier 
Acts  was  noticed.  Stroud,  J.,  in  delivering  the  opi- 
nion of  the  court,  says;  "It  was  decided  under  the 
Mechanic's  Lien  Act  of  17th  March,  180C,  that  that 
Act  admitted  of  no  such  claim, — Hurley  v.  Lybrand, 
2  Whart.  Dig.  pi.  10,  p.  252.  The  grounds  of  this 
opinion  have  not  been  transmitted.  They  are  sup- 
posed to  have  been  derived  from  the  fact,  that  there 
is,  in  the  enacting  clause  of  the  Act,  an  enumeration 
of  certain  mechanics  and  material  men,  such  as  brick- 
makers,  brick-layers,  stone-cutters,  masons,  lime-mer- 
chants, carpenters,  painters  and  glaziers,  iron-mongers, 
blacksmiths,  plasterers  and  lumber-merchants,  who, 
for  the  work  done  or  the  materials  furnished  by  them, 
are  declared  to  be  entitled  to  liens,  whilst  no  mention  is 
made  of  a  paper-hanger.  This  argument  is  entitled  to 
much  consideration ;  for,  though  this  enumeration  is  fol- 
lowed by  the  more  general  language,  ^or  any  other  per- 
son or  persons  employed  in  furnishing  materials  for  or 
in  the  construction  of  such  house,'  &c.,  yet,  it  is  observa- 
ble, that  this  language  does  not  extend  to  work  done, 
but  is  restricted  to  the  furnishing  of  materials,  by  such 
other  persons.  Paper-hangers,  therefore,  not  being  in 
the  enumerated  class  of  protected  mechanics,  and  the 
other  language  not  comprehending  claims  for  icorh 


SECURED  BY  THE  LIEX.  115 

done,  would  seem  not  to  have  been  within  the  purview 
of  the  Act  of  1806."^ 

The  Act  of  January  28,  1831,  extends  the  Act  of 
1806,  and  its  supplements,  "to  plumbers,  for  all  work 
by  them  done,  or  materials  by  them  found  and  pro- 
vided, for  or  in  the  erecting  and  constructing  of  all 
and  every  dwelling-house  or  other  building,  and  the 
hydrants  and  pipes  appurtenant  thereto,  hereafter 
constructed  and  erected  within  the  city  and  county  of 
Philadelphia." 

The  Act  of  183G,  omitting  any  enumeration  such 
as  we  find  in  prior  Acts,  extends  the  lien  to  "  all  debts 
contracted  for  Vv^ork  done,  or  materials  furnished  for 
or  about  the  erection  or  construction  "  of  the  building. 

Upon  this  subject  the  Commissioners  say:  "We 
have,  in  this  section,  omitted  the  enumeration  of  par- 
ticular mechanics  and  material  men,  since  the  general 
words  of  the  Act  of  1806  seemed  to  render  it  neces- 
sary." 

In  the  case  of  Freeman  v.  Gilpin,  which  we  have 
already  cited,  the  question  arose  as  to  paper-hangers, 
under  the  Act  of  1836.  The  remarks  which  we  have 
given  were  made  in  reference  to  earlier  Acts,  for  the 
purpose  of  distinguishing  them  from  the  later  one,  and 
explaining  prior  decisions.  In  regard  to  the  Act  of 
1836,  Stroud,  J.,  says: — "Here  is  no  enumeration, 
but  the  expressions  are  as  general  as  possible.  And 
as  there  can  l)e  no  doubt,  at  the  present  day,  whatever 
may  have  been  the  practice  formerly,  that  a  paper 

*  Freeman  v.  (jllpiu,  0  Law  J.  120, 


116  NATURE  OF  THE  DEBT 

hanger  does  work  and  furnishes  materials  in  the  con- 
struction of  a  house,  there  seems  no  just  ground  for 
his  exclusion  from  the  benefits  of  this  Act.  New 
houses  are  seldom  offered  for  sale,  or  to  be  let,  until 
papered.  AYhen  the  Act  of  180G  was  passed,  and  for 
many  years  afterwards,  the  practice  was  otherwise. 
This  change  of  circumstances,  in  itself,  requires  a  cor- 
responding application  of  the  law." 

The  act  of  March  24th,  1849,  expressly  extending 
the  Act  of  1836  to  paper-hangers,  was  in  force  at  the 
time  of  this  decision,  and  was  referred  to,  as  showing, 
that  they  could  not  have  been  embraced  by  the  pro- 
visions of  the  Act  of  183G.  But  the  argument  was 
not  regarded. 

The  29th  section  of  the  Act  of  1836  extends  the 
lien  to  '^  plumbers  and  persons  furnishing  curbstone 
for  the  pavement  of  any  building  as  aforesaid,  within 
the  city  and  county  of  Philadelphia." 

The  words  "within  the  city  and  county  of  Phila- 
delphia" were  not  in  the  original  draught  reported  by 
the  Commissioners.  The  rest  of  that  section,  however, 
was  theirs ;  and  they  say,  in  regard  to  it :  "  The  con- 
cluding section  extends  the  provisions  of  the  Act  to 
plumbers  and  persons  furnishing  curbstone,  and  fol- 
lows, in  this  respect,  the  Acts  of  1818  and  1831.  It 
seems  proper  to  provide  for  them,  specially,  here,  as 
they  are  not,  necessarily,  included  in  the  general  terms 
of  the  first  section." 

An  Act  of  April  24  th,  1843,  extended  this  section 
to  Northampton  county;  an  Act  of  May  6th,  1844,  to 
the  city  of  Lancaster;  an  Act  of  January  23d,  1849, 


SECURED  BY  THE  LIEN-.  117 

to  Chester  county;  and  an  Act  of  March  24th,  1849, 
extended  the  hen  to  plumbers  in  Chester  county. 

By  an  Act  of  April  14th,  1855,  the  provisions,  gene- 
neralty,  of  the  Act  of  1836,  are  extended  "to  plumb- 
ing, gas-fitting,  and  furnishing  and  erecting  of  grates 
and  furnaces." 

Notwithstanding  these  Acts,  however,  questions 
must,  hereafter,  arise,  under  the  general  words  of  the 
Act  of  1836,  above  mentioned,  as  to  the  work  of  par- 
ticular artisans,  and  its  relation  to  the  structure,  such 
as  that  presented  in  Freeman  v.  GiljDin,  to  be  decided 
on  the  principles  there  suggested. 

For  the  basis  Act  of  1836  no  longer  names  particu- 
lar mechanics,  but  leaves,  for  each  case,  the  question, 
whether  the  work  done,  or  the  materials  furnished, 
are  of  such  a  nature,  that  they  can  be  said  to  be  done 
or  furnished  "  for  or  about  the  erection  or  construction  " 
of  the  building. 

But  there  is  another  requisite  involved  by  the  words 
"for  or  about  the  erection  or  construction,"  &c.  The 
work  must  be  done,  or  the  materials  furnished,  upon 
the  credit  of  the  house. 

In  Hills  V.  Elliott  the  court  show,  very  clearly,  the 
importance  of  this  doctrine  of  credit,  or  intention ;  of 
the  purpose  and  understanding,  that  the  work  and 
materials  are  for  the  building,  and  bind  it.  They  say; 
"  A  lumber  merchant  purchases,  on  credit,  one  hun- 
dred thousand  feet  of  boards,  to  sell  and  make  profit. 
He  changes  his  intention,  and  erects  two  or  tlircc 
houses,  and  uses  half  of  the  boards  therein.  If  his 
creditor,  for  this  lumber,  has  a  lien  on  those  houses, 


118  NATURE  OF  TUE  DEBT 

he  has  what  neither  hmiself,  nor  the  bujer,  nor,  as  I 
beUeve,  the  Legislature  ever  intended."  ^ 

The  question  of  a  credit  to  the  house  arises,  most 
fre(|ucntly,  of  course,  with  reference  to  materials  fur- 
nished. W  hatcver  may  be  the  belief  and  intention  of 
the  person  supplying  them,  and  whatever  his  reliance 
upon  the  person  who  gives  the  order,  they  are,  upon 
a  delivery  to  the  latter,  subject  entirely  to  his  dispo- 
sition. From  a  change  of  purpose,  or  a  fraud,  he  may 
never  use  them  in  the  house.  Is  the  lien  of  the  ma- 
terial man  to  depend  upon  his  ulterior  purposes? 

There  is  nothing  in  the  Act  requiring,  that  the  ma- 
terials should  be  actually  used  in  the  building.  It  is 
sufficient  if  they  are  furnished  ''  for  or  about  the  erec- 
tion or  construction." 

In  an  early  case,  the  lien  of  a  lumber  merchant  was 
sustained,  though  the  lumber  was  not  used.  The 
Judge  who  presided  in  the  District  Court,  for  the  City 
and  County  of  Philadelphia,  charged,  upon  this  point, 
as  follows :  "  Was  the  debt  contracted,  and  on  account 
of  the  building;  and  w^as  it  delivered  at,  or  near  the 
premises,  with  an  intention  to  be  used  therein?  If  it 
was,  Wallace  has  done  every  thing  to  entitle  him  to 
his  lien,  and  it  would  be  hard  to  allow  him  to  be  de- 
feated by  any  act  of  Melchoir's  in  wdiich  Wallace  had 
no  participation. 

"  If  you  are  satisfied,  that  Wallace's  debt  was  con- 
tracted for,  and  on  the  credit  of  the  building;  and 
that  the  lumber  was  delivered  at  or  near  the  building, 

U6  S.  &  R.  58. 


SECURED  BY  THE  LIEX.  119 

at  the  place  pointed  out  by  Melchoir,  idtJi  an  under- 
standing  of  the  parties  that  it  loas  to  he  used  in  the  ereo- 
tion  thereof:  if,  after  that,  Melchoir  did  not  use  the 
lumber  in  the  building  but,  without  the  knowledge  or 
consent  of  the  plaintiff,  sold  it  to  other  persons,  still, 
Wallace  had  a  lien  on  the  building,  for  his  debt."  ^ 

In  Hinchman  v.  Graham,  Tilghman,  Ch.  J.,  says : — 
*'I  was  once  inclined  to  think,  that  the  lien  might  be 
restrained  to  the  materials  actually  used  in  the  huilding, 
but,  on  reflection,  I  find  that  such  a  construction  is 
not  warranted  by  the  words  of  the  law,  and  would 
operate  unjustly  on  those  who  furnish  the  materials; 
for,  how  can  they  tell  the  exact  quantity  that  the 
building  will  require,  or  what  control  have  they  over 
the  purchaser,  after  delivery?"  and  again,  "the  mer- 
chant, having  sold  and  delivered  the  materials,  for  the 
purpose  of  being  used  in  the  building,  could  do  no 
more.  It  would  be  unjust,  therefore,  to  throw  upon 
him  the  risk  of  their  future  application."  And  the 
remarks  of  Yates,  J.,  in  the  same  case,  are  equally 
clear  and  direct,  and  still  more  positive.-^ 

In  Harker  v.  Conrad,"  the  same  doctrine  was  held 
by  the  court  below,  without  any  disapproval  by  the 
Supreme  Court.  In  Church  v.  Allison,^  also,  the  ear- 
lier cases,  as  to  this  point,  are  sustained.  And  in 
Witman  v.  Walker,  the  court,  expressly,  say :  "  The 
right  to  obtain  a  lien  is  given  by  the  Act  of  Assembly 
to  all  debts  contracted  for  work  done  or  materials  fur- 
nished for  or  about  the  erection  or  construction  of  the 

1  Wallace  V.  Melchoir,  2  Br.  10 1.  ^  2  S.  &  R.  170. 

M2  S.  &  11.  30U.  '  10  13.  410. 


120  NATURE  OF  THE  DEBT 

building,  and  that,  whether  the  materials  are  actually 
used  in  it  or  not."^ 

But  what  is,  then,  the  furnishing  "for  or  about" 
the  erection  and  construction  of  a  building,  which 
forms  the  basis  of  the  debt,  without  reference  to  what 
is  actually  done  with  the  materials;  in  fact,  even  if 
they  are  not  so  used. 

In  Hinchraan  v.  Graham,  the  court  makes  the  test 
of  coming  within  these  words,  that  the  lumber  was 
furnished  "  for  the  purpose"  of  being  used  in  the  build- 
ing. 

In  Hills  V.  Elliot,  the  court  say : — "  The  materials 
must  be  furnished  on  the  credit  of  a  particular  house. 
Such  must  be  the  understanding  at  the  time." 

We  shall,  hereafter,  in  treating  of  the  subject  of 
evidence,  jjresent  the  cases  which  bear  upon  the  mode 
of  showing  this  "purjjose"  or  "credit," — the  proof  to 
be  adduced  by  the  plaintiff,  on  the  trial. 

The  question  has  often  been  made,  how  far  special 
agreements  between  the  mechanic  or  material  man, 
and  the  contractor,  affect  the  position  of  the  debt.  It 
has  two  aspects,  one  having  reference  to  the  question 
Avhether  a  lien  ever  existed,  the  other  to  its  extin- 
guishment after  it  had  begun.  It  is  to  the  former  of 
these,  that  we  shall  now^  turn  our  attention.  The 
latter  we  shall  consider,  in  treating  of  the  nature  of 
the  lien. 

None  of  the  earlier  decisions  intimated,  that  a  spe- 
cial contract  endangered  the  lien.     On  the  contrary, 

1  9  W.  &  S.  186. 


SECURED  BY  THE  LIEX.  121 

tliey  tended  to  establish,  affirmatively,  the  opposite 
doctrine. 

In  Hinchman  v.  Lybrand/  a  brickmaker  made  a 
special  agreement,  in  writing,  with  the  owner,  by  which 
he  agreed  to  furnish  the  bricks  for  two  houses,  to  be 
paid  for,  partly,  in  cash,  at  a  certain  fixed  time,  and, 
partty,  in  lumber,  at  fair  prices,  when  called  for; 
which  agreement  w^as  guarantied  by  a  third  person. 
It  was  held  that  the  brickmaker  had  a  lien. 

Under  another  head,  we  shall  refer  to  numerous 
authorities  showing,  that  a  taking  of  a  bond,  or  a  note, 
or  even  the  entering  or  obtaining  of  a  judgment,  for 
the  same  debt,  is  not  a  waiver,  release  or  extinguish- 
ment of  the  lien.  If  this  be  so,  of  course,  the  taking 
such  a  security,  in  contemplation  of  the  debt,  but  be- 
fore the  lien  attaches,  ought  not  to  interfere  with  its 
validity. 

In  M'Call  V.  Eastwick,  the  plaintiff,  who  was  a  car- 
penter, agreed  with  the  defendant,  who  was  a  plas- 
terer, that  each  should  do  work  upon  the  other's  build- 
ing, of  his  particular  kind,  and  when  both  had  done,  a 
settlement  was  to  be  had.  The  court  sustained  the  lien.^ 

In  a  case  of  Shafier  v.  Hull,  in  the  Common  Pleas 
of  Lancaster  county,  Lewis,  J.,  held  that  where  the 
contractor  was  a  carpenter  as  well  as  a  lumber  mer- 
chant, and  his  contract  was  confined  to  matters  within 
the  lien  of  his  own  business,  he  had  a  lien,  notwith- 
standing a  special  agreement.^ 

1 14  S.  &  R.  32. 

2  2  MilcH,  45.     Sec  Croskcy  v.  Coryell,  2  Wli.  223. 

»  3  Pa.  L.  J.  321. 


122  NATURE  OF  THE  DEBT 

In  Havilland  v.  Pratt,  a  lien  was  sustained,  though  it 
was  agreed  that  the  work  was  to  be  paid  for  in  a  house.^ 

But  in  the  case  of  Haley  v.  Prosser,  for  the  first 
time,  the  doctrine,  was  announced,  that  a  special 
agreement,  under  all  circumstances,  deprives  the  party 
of  his  lien.  "We  have,  heretofore,  ruled,"  say  the 
court,  "that  where  there  is  a  special  contract  with 
the  owner,  the  party  who  dealt  with  him  must  provide 
for  his  own  security ;  but,  that  where  there  is  no  agree- 
ment in  which  the  terms  of  the  bargain  are  particularly 
stated,  he  is  supposed  to  contract  on  the  basis  of  the 
law.  Indeed,  the  specification  required  by  the  statutes 
of  "the  nature  or  kind  of  work  done,  or  the  kind  and 
amount  of  materials  furnished,  and  the  time  when  the 
materials  were  furnished,  or  the  work  was  done,"  is 
inapplicable  to  a  lumping  case,  in  which  the  party 
has  contracted  for  a  round  sum,  or,  as  in  this  case,  for 
a  given  number  of  bricks.  The  object,  originally,  in 
the  contemplation  of  the  legislature,  was,  to  secure 
those  who  furnish  labour  or  materials  to  a  mere  builder, 
without  knowing  the  owner,  or  having  an  opportunity 
to  secure  themselves;  but  the  words  of  the  law  are 
certainly  applicable  to  cases  in  which  the  owner  is  his 
own  builder.  Where,  however,  the  rights  and  re- 
sponsibilities are  defined  by  a  bargain,  neither  is  at 
liberty  to  claim  any  thing  beyond  the  terms  of  it."  ^ 

This  decision  was  a  surprise  to  the  profession.  And 
the  idea,  that  the  original  design  of  the  legislature 
was,  to  favour  those  who  did  not  know  the  owner, 

1  9  Leg.  Int.  98.  ^  8  W.  &  S.  134. 


SECURED  BY  THE  LIEN.  123 

seems  somewhat  in  conflict  with  the  words  of  the 
Act  of  1803,  construed  by  the  case  already  cited,  of 
Stein metz  v.  Boudinot,  which  forbid  a  lien  for  any 
debt  not  contracted  directly  with  the  owner.  Gibson, 
Ch.  J.,  in  speaking  of  decisions  prior  to  that  of  Haley  v. 
Prosser,  said,  that  it  had  not,  at  that  time,  ever  been 
determined,  that  a  mechanic  or  material  man  could 
not  file  a  claim,  where  he  had  made  a  special  contract ; 
and,  that  no  more  had  been  decided,  than,  that  the 
master  builder  or  contractor  could  not  file  a  claim  for 
his  services  and  skill.^ 

The  decision  in  Haley  v.  Prosser,  probably,  led  to 
the  passage  of  the  Act  of  April  16th,  1845,  wdiich 
enacts:  ''that  the  provisions  of  the  Act"  of  183G, 
"according  to  the  true  intent  and  meaning  thereof, 
extend  to  and  embrace  claims  for  labour  done  and 
materials  furnished  and  used  in  erecting  any  house 
or  other  building,  which  may  have  been,  or .  shall 
be  erected  under  or  in  pursuance  of  any  contract  or 
agreement  for  the  erection  of  the  same ;  and  the  pro- 
visions of  the  said  Act  shall  be  so  construed;  and  no 
claim  which  has  l^een  or  may  be  filed  against  any 
house  or  other  building,  or  the  lien  thereof,  or  any 
proceeding  thereon,  shall  be,  in  any  manner,  aficcted, 
by  reason  of  any  contract  having  been  entered  into  for 
the  erection  of  such  building;  but  the  same  shall  be 
held  good  and  valid,  as  if  the  building  had  not  been 
erected  by  contract:  Provided,  that  no  case  shall  be 
affected  by  this  section  which  may  have  been  decided 

»  Bolton  V.  Jolm.s,  5  B.  157. 


124  NATURE  OF  THE  DEBT,  ETC. 

by  tlie  Supremo  Court,  or  in  which  the  proceeds  of 
the  sale  of  cany  real  estate  may  have  been  distributed 
by  the  decree  of  any  court  from  which  no  appeal  has 
been  taken." 

Several  decisions  have  been  had  bearing  upon  this 
subject,  since  the  Act,  which  we  need  only  refer  to. 
The  only  one  of  them  which  needs  comment,  perhaps, 
is  that  of  Johns  v.  Bolton,  in  which  Gibson,  Ch.  J., 
seems  to  throw  out  a  doubt,  whether  the  Act  in  ques- 
tion applies  to  sub-contractors.  But  there  is  so  little 
that  is  definite  in  the  opinion,  on  this  point,  that  we 
cannot  safely  do  more  than  call  attention  to  it.  The 
words  of  the  Act,  however,  are  not  free  from  doubts 
and  difficulties  of  construction.^ 

It  is,  perhaps,  proper  lest  they  should  have  escaped 
attention,  to  refer,  again,  to  the  cases  in  which  it  was 
held,  prior  to  the  decision  in  Haley  v.  Prosser,  that  a 
debt  may  be  the  subject  of  a  claim,  although  it  be 
payable  in  lumber,  or  in  a  house. ^ 

1  Young  V.  Lyman,  9  B.  449.  O'Brien  v.  Logan,  9  Id.  97.  Bolton 
V.  Johns,  5  Id.  145. 

2  Hincbman  v.  Lybrand,  14  S.  &  K.  32.  M'Call  v.  Eastwick,  2 
M.  45.     Havilland  v.  Pratt,  9  Leg.  Int.  98. 


THE  CREDIT  OF  TDE  BUILDING.  125 


CHAPTER  III. 

TTHO  MAY  PLEDGE  THE  CREDIT  OF  THE  BUILDING. 

By  the  Act  of  1803,  as  we  have  seen,  no  building 
could  be  bound  except  for  the  payment  of  a  debt  con- 
tracted by  "the  owner  or  owners  thereof."  And  in 
the  case  of  Steinmetz  v.  Boudinot,  it  was  expressly 
held,  that  where  the  owner  made  a  contract  with  ano- 
ther, to  build  his  house,  and  that  other  engaged  or 
employed  mechanics  or  material  men,  he  did  so  upon 
his  own  credit,  and  not  upon  that  of  the  building.^ 

The  question  how  far,  in  such  a  case,  the  contract 
of  the  builder  was,  under  the  usual  law  of  agency, 
really  the  contract  of  the  owner,  does  not  appear  to 
have  been  made,  either  in  that  or  any  other  reported 
case.^ 

Subsequent  enactments  relieved  the  system  of  this 
difficulty,  by  omitting  the  words  above  quoted;  and 
the  Acts  of  1808,  and  183G,  expressly,  recognised  a 
debtor  or  contractor,  who  might  charge  the  building, 
and,  yet,  not  be  the  owner. 

It  is  singular,  that  the  question  did  not  sooner  occur, 
whether  such  a  contractor  must  be  one  whose  contract 
extends  to  the  whole  building,  or  whether  a  sub-con- 
tractor, for  a  portion  of  the  building,  could  bind  the 
owner  and  his  estate  in  the  same  manner. 

'  .3  S.  k  R.  541,  and  hoo  Jones  v.  Sl.awan,  4  ^Y .  &  S.  20 1. 
'^  But;  see,  Cunipbell  v.  Scaif'c,  8  Leg.  Int.  74. 


126  "WHO  MAT  PLEDGE  THE 

In  several  cases,  which  are  cited  in  the  decision 
which  we  are  about  to  notice,  the  similarity  of  the 
positions  of  the  contractor  and  sub-contractor,  with  a 
view  to  their  rights  of  lien  against  the  owner  and  his 
building,  was  discussed.  But  the  question,  whether 
the  sub-contractor  pledged  the  credit  of  the  building, 
when  he  employed  mechanics  or  ordered  materials, 
and  whether  he  was  a  "contractor,"  within  the  mean- 
ing of  the  Act  of  1836,  who  might  be  joined  in  the 
claim,  and  made  a  party  to  the  proceeding,  seems  not 
to  have  come  directly  up,  until  this  case  presented 
itself. 

We  refer  to  the  case  of  Derriclison  v.  Nagle,  in  the 
District  Court  for  the  city  and  county  of  Philadelphia, 
in  Vvliich  a  claim  was  filed  against  an  owner  and  con- 
tractor, the  latter  being  merely  a  sub-contractor,  to 
'•furnish  or  put  up  all  the  marble  mantels."  In  this 
case  the  claim  was  sustained.  But,  Sharswood,  Pr. 
J.,  in  delivering  the  opinion  of  the  court,  says : — "  Were 
this  Res  Integra,  we  should  be  disposed  to  hold,  that 
no  one  but  a '  contractor,  architect,  or  builder,' — (these 
words  being  evidently  used  in  the  Act  of  Assembly  as 
synonymous,)  has  authority  to  pledge  the  credit  of 
the  building.  Many  reasons  may  be  urged  to  show 
the  inconvenience  and  injustice  of  any  other  interpre- 
tation. The  owner  who  erects  a  building  by  contract 
is  environed  with  great  perils,  but  these  are  multi- 
phed,  beyond  measure,  when  he  is,  himself,  the  archi- 
tect, and  gives  out  the  different  parts  of  the  work  to 
difierent  mechanics. 

"  Not  only  may  he  be  made  to  pay  twice  for  the  same 


CREDIT  OF  THE  BUILDING.  127 

thing,  but  his  terms  as  to  price,  &c.,  will,  of  course,  not 
be  binding  upon  the  mechanic,  who  is  not  privy  to 
the  original  contract. 

"  We  have  found  it  impossible,  however,  to  recon- 
cile such  a  position  with  the  authorities.  In  Witman 
V.  Walker,  9  W.  &  S.  183,  the  plaintiff,  below,  was 
a  contractor,  in  the  same  position  as  Brovvn.  He 
had  contracted  to  do  all  the  marble-work.  It  was 
held,  that  he  fell  within  the  principle  of  Jones  v. 
Shawan,  4  W.  &  S.  417,  and  Hoatz  v.  Patterson,  5 
ibid.  537,  and -was  not  entitled  to  file  a  lien.  'It 
is  not  easy  to  perceive,'  says  Judge  Sergeant,  'any 
difference,  in  principle,  in  the  circumstance,  that  the 
contract  is  not  for  the  whole  building,  but  for  a  par- 
ticular job  or  piece  of  work,  as  here,  to  put  up  the 
marble-work  for  two  houses,  and  furnish  marble  man- 
tels.* The  relation  of  the  parties  is  the  same,  and 
similar  inconveniences  and  incongruities  would  ensue, 
to  those  pointed  out  in  the  opinion  delivered  by  Mr. 
Justice  Rogers,  in  Jones  v.  Shawan,  if  the  same  indi- 
vidual might  stand  in  the  double  capacity  of  con- 
tractor and  material  man.'  Mr.  Justice  Rogers  does 
not  deliver  any  opinion  in  Jones  v.  SlmAvan,  but  he 
does  in  Iloatz  v.  Patterson,  5  W.  &  S.,  538,  and  in 
that  he  says :  '  There  would,  in  either  case,  Ijc  the 
same  inconvenience  arising  from  double  liens  and 
double  recoveries,  and  the  same  incongruity  in  the 
same  person  being  both  plaintiff  and  defendant.'  "  ^ 
But  the  question,  who  may  pledge  the  credit  of  the 


»  13  Lt-K.  Int.  158. 


128  WHO  MAY  PLEDGE  THE 

building,  has  other  and  more  diflicult  aspects.  It  is 
proper,  that  one  who  is  employed  by  the  owner  to  erect 
a  house,  should  not  be  made  an  instrument,  as  he  was 
under  the  Act  of  1803,  of  enabling  him  to  evade  the 
liens  of  those  who  are  employed  in  the  construction. 
But  there  are  cases  in  which  the  owner  of  an  estate 
in  the  land,  not  only,  has  no  relations,  directly  or  in- 
directly, of  a  contract  character,  with  the  structure, 
or  those  employed  upon  it,  but  would  prevent  its  pro- 
gress, if  he  could.  Thus,  the  owner  of  a  life  estate, 
or  other  particular  estate,  builds;  can  he  charge  the 
estate  of  the  reversioner  or  remainder  man;  does  the 
lien  to  which  he  gives  rise  bind  the  fee?  A  lessee 
erects  a  dwelling  upon  the  premises  demised  to  him, 
will  a  sale  under  the  lien  of  one  of  his  mechanics  carry 
the  absolute  estate  to  the  purchaser?  A  trespasser 
constructs  a  house,  can  he  enable  the  persons  whom 
he  employs  to  charge  the  title  of  the  real  proprietor? 
These  are  questions  which  have  all  been  settled  by 
authority. 

It  was  early  decided,  that  this  lien  arose  from  a 
credit  given  to  the  building,  and  not  to  the  owners, 
and  that  as  remainder  men  and  reversioners  were 
benefited  by  its  erection,  their  interests  were,  pro- 
perly, bound  by  the  lien.^  And  where  the  owmer  of 
an  equitable  estate,  in  possession,  employed  the  me- 
chanics, it  w^as  held  that  the  legal  estate  was  bound.  -^ 


1  Savoy  V.  Jones,  2  R.  350.     But  see  Barnes  v.  Wright,  2  Wh. 
293;  and  2  Wash.  C.  C.  11.  33. 
'  Bickel  V.  Jame.«»,  7  W.  9. 


THE  CREDIT  OF  THE  BUILDING.  129 

So,  in  the  case  of  a  lessee,  a  like  doctrine  was  an- 
nounced.^ 

These  cases  must  be  carefully  distinguished  from 
others,  in  which  it  has  been  held,  that  erections  by  a 
tenant  for  years,  for  the  purposes  of  trade,  or  under 
an  agreement  to  remove  them  at  the  end  of  his  term, 
being  merely  chattels,  do  not  subject  the  premises  to 
a  lien.  The  latter  cases,  of  course,  would  not  apply, 
where  the  structure  was,  in  fact,  realty,  though  the 
lessee  might  be  the  person  who  procured  its  erection.^ 

The  supposed  hardship  of  these  doctrines  to  re- 
mainder-men and  reversioners,  owners  of  legal  estates, 
and  lessees,  led  to  the  Act  of  1840,  which  enacts  that 
the  lien  "  shall  not  be  construed  to  extend  to  any  other 
or  greater  estate  in  the  ground  on  which  any  building 
may  be  erected,  than  that  of  the  person  or  persons  in 
possession,  at  the  time  of  commencing  the  said  build- 
ing, and  at  whose  instance  the  same  is  erected,"  &c. 

But  the  decisions  which  led  to  this  Act  did  not 
reach  the  case  of  an  erection  by  a  mere  intruder.  It 
might,  indeed,  in  some  cases,  benefit  the  owner  of  the 
better  title,  and  the  mechanic  might  have  given  implicit 
credit  to  the  building;  but  it  would  be  a  hardship  not 
to  be  borne,  that  the  owner  should  be  affected  by  a 
mere  trespass.  The  point  has  never  been  expressly 
decided,  but  in  the  case  of  Bickel  v.  James,  already 
referred  to,  Gibson,  Ch.  J.,  seems  to  presume  strongly 
against  the  lien  in  such  a  case."^ 


'  IlolJbhip  V.  Abcrcoinhie,  0  ^V.  53. 

*  See  cases  cited  ante,  p.  87,  A;u.  ^  7  W.  0. 

9 


130    T7n0  MAT  PLEDGE  THE  CREDIT  OF  THE  BUILDING. 

In  the  case  of  Bruner  v.  Sheik,  it  was  held  that  an 
insurance  company,  building  in  discharge  of  its  duty, 
under  a  polic}^  of  insurance,  could  not  enable  the  me- 
chanics to  aftect  the  premises  with  their  liens.^ 

We  shall  refer  to  most  of  these  decisions,  more  par- 
ticularly, hereafter.^  It  is  manifest  from  their  tenor, 
that,  even  prior  to  the  Act  of  1840,  it  was  the  safer 
course,  for  the  mechanic  or  material  man,  to  see  to  the 
title  of  the  person  upon  whose  land  he  was  building. 
Since  that  Act,  this  duty  is  most  manifest. 

1  9  ^Y.  &  S.  119.  2  Part  HI.,  cli.  3. 


PART  III. 

OF  THE  SUBJECT  OF  THE  LIEX. 

CHAPTER  I. 

OF  THE  SUBJECT  OF  THE  LIEX,  AS  RESPECTS   ITS  NATURE. 

The  primary  object  of  the  legislature  seems  to  be, 
to  give  to  the  mechanic  and  material  man  security  for 
their  debts,  by  pledging  to  them  the  subjects  of  those 
debts,  themselves;  viz.:  the  materials  wrought  up,  or 
constructed  into  a  building. 

The  first  necessity  of  this  object  seems  to  be,  that 
the  lien  should  attach  itself  to  each  part  of  the  mate- 
rials, as  soon  as  delivered,  whether  used  or  not,  and 
to  each  part  of  the  work,  as  soon  as  it  is  finished,  whe- 
ther it  exists  in  the  form  of  a  building,  or  has  not  yet 
reached  that  position. 

"We  have,  already,  referred  to  the  cases  which  esta- 
blish, that  a  lien  may  exist  in  favour  of  the  material 
man,  who  furnishes  materials  in  good  faitli,  on  the 
credit  of  the  building,  although  they  are  never  used 
in  the  building;  and  no  doul)t  the  rule  is  the  r>amc 
with  reference  to  work  upon  those  materials. 

In  such  a  case,  the  law  often  goes  one  step  further, 


132  NATURE  OF  THE  SUBJECT. 

to  aid  the  classes  ■svliich  it  protects,  and  gives  tlicm  a 
lien  on  work  and  materials  to  which  they  have  not 
contributed.  They  are  secured  by  a  house,  into  which 
neither  their  work  nor  materials  have  gone,  because  of 
a  credit  given  to  it. 

But  in  what  position  are  the  work  and  materials 
not  used,  if  found  and  distinguished?  Where  they 
have  been  appropriated  to  some  other  structure,  the 
lien  upon  them  is  lost,  perhaps,  owing  to  the  inter- 
fering rights  of  another  set  of  creditors.  But,  if  they 
still  exist  in  kind,  improved  by  labour,  or  as  they  were 
when  furnished,  what  has  become  of  the  liens  upon 
them?  Suppose  they  continue  in  the  hands  of  the 
contractor,  on  the  ground  where  they  were  to  have  been 
used,  or  elsewhere,  what  is  their  legal  position? 

In  the  case  of  White  v.  Miller,  the  main  question 
presented  seems  to  have  been  the  one  to  which  we 
have  already  referred,  whether  the  materials  must  be 
actually  used  in  the  building,  or  not,  in  order  to  allow 
of  a  lien.  A  portion  of  those  furnished,  there,  were 
levied  upon  and  sold,  under  an  execution  against  the 
contractor,  on  the  ground  on  which  the  house  was  erect- 
ed. The  Court  say:  "If,  then,  the  lumber  was  fur- 
nished on  the  credit  of  the  building,  and  not  of  the 
contractor,  it  is  not  easy  to  understand,  how  it  could 
be  seized  and  sold  by  his  creditors.  The  title  to  it  was 
vested,  by  the  delivery,  not  in  him,  but  in  the  pro- 
prietor of  the  building,  subject,  onl}^  to  the  revindica- 
tion of  the  seller.  The  ownership  of  it,  between  the 
time  of  delivery  and  of  working  it  into  the  building, 
could  not  be  in  the  contractor,  because  it  was  de- 
livered to  him;  not  on  his  own  credit,  but  on  the  ere- 


NATURE  OF  THE  SUBJECT.  133 

dit  of  the  building  to  which  it  was  destined.  It  was 
sold  for  the  building,  and,  consequently,  to  the  owner 
of  it.  He  had  power  to  protect  it  from  the  contractor's 
creditors,  and  he  cannot  charge  his  inactivity  to  the 
material-man,  who  had  nothing  to  do  with  it.  The 
ownership  had  passed  by  the  delivery,  and  the  build- 
ing had  become  debtor  for  the  price.  The  application 
of  the  lumber  to  the  building  was  to  be  seen  to  by  the 
owner  of  both."  ^ 

If  this  case  means  to  decide  that  materials,  in  such 
a  condition,  are  subject  to  the  lien  of  the  mechanic  or 
material  man,  and  that  they  cannot  be,  in  law,  as 
between  the  parties,  withdrawn  from  it,  even  to  satisfy 
the  creditors  of  the  person  who  is,  in  fact,  the  debtor 
for  them,  another  doctrine  must  be  invoked,  to  enable 
the  claimant  to  reach  them.  The  process  given  by 
the  Acts  is  of  a  nature  adapted  to  levy  upon  realty, 
only,  and  to  give  him  relief,  it  would,  perhaps,  not  be 
straining  the  principles  of  the  law,  to  treat  such  ma- 
terials as,  constructively,  realty,  portions  of  the  house 
upon  the  credit  of  which  they  were  furnished. 

Where  the  materials,  however,  have  not  only,  not 
been  used,  but  no  house  at  all  has  been  erected,  such 
a  construction  would  lead  to  very  embarrassing  re- 
sults. 

Another  necessity  of  the  desire  to  enable  the  me- 
chanic, or  material  man,  to  follow  his  own  work  or  ma- 
terials, is,  that  he  should  follow  them  in  their  new  form 
and  position.  A  lien  is,  therefore,  given  upon  the 
house  erected. 

'  G  II.  54. 


134  NATURE  OF  THE  SUBJECT. 

But  as  a  sale  of  the  house,  alone,  would  be,  gene- 
rally, an  idle  and  profitless  course,  a  third  necessity 
of  the  protection  sought,  is,  that  the  lien  should  ex- 
tend to  the  land,  also,  upon  which  the  house  is  erected. 

It  was  contended,  as  we  shall  see,  more  fully,  in  the 
following  chapter,  at  an  early  period  in  the  history  of 
the  law,  that  the  building,  only,  was  affected  by  the 
lien,  and  that  it  did  not  extend  to  the  soil  beneath. 
This  view,  however,  never  received  the  serious  coun- 
tenance of  the  courts.  The  land  has,  always,  been 
considered  as  bound  with  the  house,  and  is,  in  fact,  the 
Bubstantial  subject  of  the  incumbrance.  This  is  the 
practical  result  of  following  the  work  and  materials. 

But  as  the  land  can  only  be  charged,  through  the 
building  erected  upon  it,  and,  as  the  description  of  the 
land,  as  a  subject,  depends,  therefore,  to  a  very  im- 
portant extent,  upon  the  building,  it  is,  always,  ne- 
cessary, first  to  ascertain  the  character  of  the  building 
which  can  so  affect  the  laud. 

We  have  so  fully  discussed  this  topic  in  the  chapter 
upon  the  nature  of  the  debt  which  forms  the  basis  of 
the  lien,  that  we  may  refer  to  it  for  all  the  information 
which  is  afforded  by  the  cases.  Of  course,  wherever 
a  building  is  of  such  a  character,  as  to  bring  the  debts 
to  which  its  erection  gives  rise,  within  the  Acts,  it  be- 
comes, itself,  a  proper  subject  for  the  lieu;  and,  on 
the  other  hand,  buildings  which  are  not  of  a  character 
to  create  a  lien,  under  the  Acts,  such  as  public  build- 
ings, and  mere  chattel  structures,  erected  by  lessees, 
for  purposes  of  their  trade,  are,  for  a  like  reason,  ex- 
cluded from  the  operation*  of  the  law. 


EXTENT  OF  THE  SUBJECT.  135 


CHAPTER  II. 

OF  THE  SUBJECT  OF  THE  LIEN  IN  RESPECT  OF  ITS  EXTENT. 

In  the  earlier  Acts  the  "  dwelling-house  or  other 
building/'  was  made  subject  to  the  lien. 

In  a  case  decided  more  than  forty  years  ago,  the 
point  was  made,  that  nothing,  but  the  house  or  building, 
was  liable;  that  the  lot  was  distinct;  and  that  where 
both  were  sold,  some  mode  must  be  devised,  to  ascertain 
their  respective  values,  and  distribute  the  money  accord- 
ingly. This  case  arose  in  the  court  of  Common  Pleas,  of 
Philadelphia  county,  and  Rush,  President  J.,  in  deliver- 
ing the  opinion,  says : — "  It  is  obvious,  that  this  special 
claim  of  the  lien  creditors,  must  be  determined,  on  a 
sound  construction  of  the  lien  acts,  and  on  established 
principles  of  law.  There  can  be  no  question  as  to 
the  view  of  the  legislature,  which  certainly  was  to 
give  the  lien  creditors  every  possible  benefit  arising 
from  the  house  or  building,  as  a  fund  for  the  payment 
of  their  demands.  The  project  of  selling  the  house, 
without  the  lot,  would,  in  a  great  degree,  if  not  en- 
tirely, destroy  the  fund  provided  by  the  legislature. 
The  security  and  preference  given  to  them  would  be 
a  shadow,  instead  of  a  substance.  The  titles  to  real 
property  would  be  infinitely  perplexed,  by  a  proceed- 
ing of  this  kind.     One  person  would  own  the  house, 


136  EXTENT  OF  THE  SUBJECT. 

and  another  the  lot.  In  case  the  liouse,  only,  vvere 
sold,  the  purchaser  would  have  no  right  to  a  foot  of 
the  adjacent  or  surrounding  ground,  and  the  owner 
might  build  against  his  doors  and  windows.  It  is  im- 
possible to  trace  all  the  mischiefs  resulting  from  this 
new-fangled  title.  Upon  general  principles  of  law, 
we  are,  also,  of  opinion,  that  the  lien  creditors  have  a 
right  to  sell  both  house  and  lot.  A  grant  of  the  pro- 
fits of  land  is  a  grant  of  the  land.  A  grant  of  a  pool 
of  water  is  a  grant  of  the  land  which  it  covers ;  1  Inst. 
5,  6.  So  a  grant  of  a  house  is  a  grant  of  the  lot,  and 
the  curtilage.  Upon  this  principle  a  lien  on  the  house, 
in  the  present  case,  is  a  legislative  grant  of  both  house 
and  lot,  to  the  grantee.  When  a  man  grants  to  an- 
other a  lien  or  mortgage  on  his  house,  it  is,  in  law,  a 
lien  or  mortgage  on  the  lot  also. 

"On  the  supposition,  that  the  law  has  given  the 
lien  creditor  a  right  to  sell  nothing  but  the  building, 
look,  for  a  moment,  at  the  consequences.  The  owner 
of  a  lot,  after  building  upon  it  a  valuable  brick  house, 
finds  himself  unable  to  pay  for  it,  and  is  indebted  to 
no  creditor,  except  the  tradesmen  and  mechanics  em- 
ployed in  erecting  it.  If  the  building,  alone,  is  to  be 
sold  by  the  lien  creditor,  it  will,  necessarily,  sell  for  a 
trifle,  icitliout  the  lot;  and  the  debtor  has  only,  to  get 
some  friend  to  purchase  it,  for  his  use,  and  he  will 
practise  a  complete  fraud  on  all  his  creditors."^ 

In  Bickel  v.  James,  the  court  say;  "But  the  pro- 


1  Browne  v.  Smith,  2  Br.  229,  (note.) 


EXTENT  OF  THE  SUBJECT.  137 

ject  of  the  Legislature,  in  the  preceding  Acts,  has  been, 
as  it  still  is,  to  secure  to  the  mechanic  or  material 
man  the  fruit  of  his  labour  or  materials,  by  selling  the 
building,  of  which  it  happened  to  be  a  component  part, 
without  regard  to  the  ground.  The  latter  was  a  sub- 
ject of  so  little  consideration,  as  not  to  have  been 
mentioned,  in  either  of  them ;  and,  that  it  is  sold  as 
an  appurtenance  of  the  building,  is,  because  it  could 
not  be  severed  from  it."  "Were  the  building  sold 
without  the  ground,  the  interest  in  the  freehold  v.'ould 
not  be  disturbed;  but,  as  that  is  impracticable,  a  conse- 
quent loss  may,  sometimes,  have  to  be  shared  by  claim- 
ants, under  the  same  title,  of  separate  interests  in  the 
fee."^ 

There  seems  to  have  been  no  doubt,  therefore,  prior 
to  the  Act  of  183G,  that  the  ground,  on  which  the 
building  was  erected,  was  subject  to  the  lien,  with  the 
building.  AVhether  the  building  be  the  principal,  and 
the  land  the  incident ;  or  the  land  the  principal,  and 
the  building  the  incident,  within  the  meaning  of  the 
law,  is,  perhaps,  not  a  matter  of  direct  importance. 

But,  upon  the  establishment  of  this  doctrine,  another 
difficulty  arose.  It  appears  to  have  been  contended, 
gravely,  that  only  the  actual  surface  upon  which  the 
building  stood,  was  affected,  not  any  of  the  surround- 
ing soil,  or  of  the  appurtenances.  But  this,  like  the 
first  objection,  was  soon  settled  in  flivour  of  the  me- 
chanic. 

In  a  very  early  case,  a  court  had  Ijcen  laid  out,  for 


*  7  W.  9.     And  see  Iloldship  v.  Aburcombic,  9  W.  5: 


138  EXTENT  OF  THE  SUBJECT. 

the  use  of  certain  houses  to  be  erected.  A  lien  was 
filed  against  one  of  tliem,  Avhich  included  the  court. 
It  -was  held,  that  the  court  was  a  necessary  appurte- 
nance to  the  house,  for  the  use  of  which  it  had  been 
opened,  and  that  it  was  properly  embraced  in  the 
description  in  the  claim. ^ 

In  the  case  of  Wertli  v.  Werth,  claims  were  filed, 
for  building  a  stone  barn,  on  a  plantation.  The  latter 
was  afterwards  sold,  and  the  proceeds  were  for  distri- 
bution among  lien  creditors.  A  question  arose,  as  to 
the  part  and  proportion  of  the  fund  raised  from  the 
wdiole  plantation,  to  which  the  mechanics  were  entitled, 
and  the  mode  of  ascertaining  it.  The  court  of  Common 
Pleas  decided,  "  that  the  lien  was  to  be  confined  to 
the  building  erected,  and  the  laftd  covered  by  it,  with 
all  the  necessary, means  of  enjoying  it,  in  the  usual 
w\ay,  and  that  the  liens  were  first  to  be  paid,  and  the 
residue  of  the  purchase  money  applied  to  the  judg- 
ments, according  to  their  priority;"  and  appointed  a 
commissioner,  to  report  the  liens,  and  the  proportionate 
value  of  the  building,  in  reference  to  the  whole  tract, 
which  proportionate  value,  was  to  be  paid  to  the  me- 
chanics, pro  rata,  and,  if  there  were  any  residue,  it 
was  to  go  to  the  judgment  creditors.  The  Supreme 
Court,  in  error,  approved  of  this  course,  and  affirmed 
the  judgment." 

Ill  the  case  of  Pennock  v.  Hoover,  the  court  say: 
"that,  by  a  literal  construction  of  the  Act  of  1806,  it 
may  be  made  a  question,  whether  the  lien  can  be  ex- 

1  Maihenny  v.  Pratt,  1  Journ.  of  Fr.  Inst.  214.  =>  2  R.  152. 


EXTENT  OF  THE  SUBJECT.  139 

tended  beyond  the  ground  actually  covered  by  the 
house  or  building;  because,  by  the  words  of  the  Act, 
it  is  the  house  or  building,  that  is  made  subject  to  the 
payment  of  the  debt,  and  no  mention,  whatever,  is 
made,  even  of  the  land  or  ground  upon  which  it  stands. 
It  is,  therefore,  only,  by  a  liberal,  or  perhaps,  more 
properly  speaking,  a  reasonable  construction,  that  the 
lien  created,  under  this  Act,  can  be  made  to  embrace 
any  land  not  covered  by  the  buildings.  And,  although 
it  may  be  necessary  in  order  to  carry  into  effect  what 
seems  to  have  been  the  intention  of  the  legislature,  as 
manifested  throughout  the  Act,  to  extend  the  lien  to 
land  beyond  what  may  be  covered  by  the  buildings,  yet, 
there  must  be  some  reasonable  limit,  in  this  respect; 
and  here,  it  appears  to  me,  that  the  purpose  of  the 
legislature  will  be  fully  satisfied,  by  extending  the  lien 
bej-ond  the  ground  covered  by  the  buildings,  to  as 
much  more  as  may  be  necessary  for  the  convenient 
occupation  and  enjoyment  of  them,  according  to  the 
intention  and  design  of  the  owner,  at  the  time  of  their 
commencement.  This  would  seem  to  be  giving  to  the 
party  all  the  security  that  was  intended  by  the  Act; 
and,  any  thing  short  of  this  would,  perhaps,  in  most 
instances,  render  it  very  ineffectual.  In  this  case,  the 
Auditor  has  made  a  division  of  the  ground,  allotting 
to  each  house,  not  only,  what  would  seem  to  be  as 
much  as  is  usually  occupied  as  a  curtilage  to  such 
houses,  placed  in  a  similar  situation,  of  the  county  or 
city  of  Pliiladelphia,  but,  all  that  the  owners  of  the 
houses  had  intended  should  be  used  as  appurtenant 


140  EXTENT  OF  THE  SUBJECT. 

thereto,  according  to  his  plan  of  improvement,  as  in- 
dicated by  the  work  done  upon  the  ground  itself."^ 

In  the  report  of  the  Commissioners,  which  we  are 
about  to  give  at  length,  a  case  of  M'Donald  v.  Lindall, 
was  mentioned,  as  tending  to  throw  some  doubt  upon 
this  subject.  The  remarks  referred  to  are  probably 
those  of  the  court,  where  they  say:  "How  far  the 
words  in  the  description  in  the  lien  filed  can  go,  in  af- 
fecting property  contiguous  to,  and  not  covered  by  the 
building,"  "we  do  not  now  decide." 

But  all  that  was,  really,  determined  by  that  case,  was, 
that  where  the  claim  did,  in  fact,  describe  the  surface 
which  the  claimant  desired  to  affect  by  his  lien,  he 
must  be  confined  to  his  description,  and  could  not 
claim  more,  because  the  law  would  have  alloAved  more, 
if  he  had  included  it. 

In  their  report,  the  Commissioners  say,  upon  this 
subject:  "The  second  section  is  new,  in  terms,  and 
has  been  introduced,  for  the  purpose  of  removing  a 
difficulty,  which  arose,  very  early,  after  the  passage 
of  the  Act  of  1806.  That  Act  saj^s,  ^ every  dwelling- 
house,  or  other  building,  shall  be  subject,'  &c.  These 
words  give  no  lien  to  the  mechanics,  &c.,  upon  the 
cjround  or  land  occupied  by  a  building,  or  adjacent  to 
it.  The  rule  of  the  common  law  is,  that  the  owner- 
ship of  the  soil  carries  with  it  every  thing  erected 
upon  it,  except  under  special  circumstances;  and  it 
has  never  been  supposed  that  the  reverse  of  this,  viz., 
that  a  right  of  lien  upon  a  house  affected  the  owner- 

»  5  E.  314. 


EXTENT  OF  THE  SUBJECT.  141 

sliip  of  the  soil,  could  be  sustained  upon  any  sound 
j)rinciple.  It  is  plain,  however,  that  a  lien  upon  a 
huUd'mg,  merely,  without  any  ownership  in,  or  control 
over  the  soil  which  it  covered,  would  be  of  little  avail 
to  the  mechanic,  even  if  the  ground  under  the  build- 
ing were  supposed  to  pass  v/ith  it.  The  value  of  the 
building  would  be  trifling,  in  most  situations,  if  de- 
prived of  the  use  of  the  ground  immediately  adjacent 
to  it.  Other  creditors,  however,  holding  mortgages  or 
judgments,  disputed  the  right  of  lien  creditors,  under 
this  law,  to  more  than  the  mere  building,  or,  at  all 
events,  to  more  than  the  ground  actually  occupied  by 
it.  The  construction  given  by  the  courts  of  Philadel- 
phia to  this  provision,  was,  perhaps,  not  free  from 
objection;  but  it  certainly  tended  to  give  efficacy  to 
these  liens,  which  it  was  the  design  of  the  legislature 
to  encourage.  They  held,  that  the  lien  attached,  not 
only  to  the  building,  and  the  ground  occupied  by  it, 
but  to  so  much  of  the  adjacent  ground  as  was  neces- 
sary and  proper  for  the  ordinary  purposes  of  the  build- 
ing. The  practice  of  many  years  has  been  in  accord- 
ance with  this  view  of  the  law.  A  recently  reported 
decision,  however,  of  the  Supreme  Court,  at  Pittsburgh, 
(M'Donald  v.  Lindall,  reported  in  3  Rawle,  492,)  has 
tended  to  throw  some  doubt  upon  the  correctness  of 
the  present  construction  of  the  Act,  and,  at  all  events, 
the  uncertainty  in  which,  by  the  practice,  the  extent 
of  the  lien  is  left,  seems  to  require  some  definite  legis- 
lative provision.  It  is  believed,  that  it  was  the  inten- 
tion of  the  legislature,  to  give  the  mechanics  and  ma- 
terial men  the  benefit  of  a  lien  upon  a  building,  Vvith 


142  EXTENT  OF  THE  SUBJECT. 

all  the  appurtenances  that  confer  a  value  upon  it,  in 
the  absence  of  any  express  stipulation  on  the  subject. 
But,  how  are  these  appurtenances  to  be  ascertained? 
Certainly,  not  by  any  general  rule,  to  be  laid  down,  in 
the  first  instance.  A  dwelling-house,  in  a  city  or 
borough,  for  example,  has,  usually,  attached  to  it,  a  lot 
of  ground,  of  sufficient  depth  for  the  usual  out  build- 
ings, and,  at  all  events,  for  the  benefit  of  light  and 
air.  A  barn  in  the  country,  in  the  middle  of  a  field, 
would  be  of  little  value,  if  there  were  no  right  to  ap- 
proach it.  Almost  every  species  of  building  has  some 
appurtenances,  which  vary  with  the  dificrent  kinds  of 
building.  If,  then,  it  can  be  conceded,  that  this  lien 
extends  to  the  appurtenances  of  a  building,  the  diffi- 
culty will  still  remain,  of  deciding  upon  the  extent 
thereof.  It  would  be,  obviously,  wrong,  to  leave  it  to 
the  lien  creditor,  to  define  the  extent  of  his  lien,  for 
himself,  on  filing  his  claim.  Nor  is  there,  at  present, 
any  authority  in  the  court  to  interfere,  before  the  pro- 
ceeds of  the  Sheriff's  sale  are  brought  in.  They  then 
endeavour  to  do  justice,  between  the  different  species 
of  incumbrances,  by  apportioning  the  fund  among 
them,  according  to  what  they  suppose  to  be  the  ex- 
tent of  their  respective  rights.  But  if,  in  law,  the 
lien  of  the  mechanic  is  limited,  as  it  must  be,  some- 
where, or  to  some  extent  of  ground,  the  Sheriff,  upon 
an  execution,  on  his  claim,  can  sell  no  more  than  to 
that  extent,  and  the  purchaser  will,  certainly,  be  in 
doubt  about  the  extent  of  his  purchase. 

"In  the  bill  now  submitted,  an  effort  has  been  made 
to  obviate  the  difficulties  alluded  to,  which,  at  least. 


EXTENT  OF  THE  SUBJECT.  143 

as  respects  some  of  those  mentioned,  will,  we  tliink, 
be  found  successful.  It  is  proposed,  in  the  3rd  section, 
to  provide,  that  the  prothonotary  shall  keep  a  docket, 
in  which  all  the  proceedings  relating  to  mechanic's 
liens  shall  be  contained.  The  object  is,  by  concen- 
trating all  that  relates  to  particular  buildings,  to  facili- 
tate inquiry  and  notice.  In  the  4th  section,  we  pro- 
pose, that  the  owner  of  a  piece  of  ground,  who  may 
be  about  to  contract  for  the  erection  of  a  building 
thereon,  may,  before  the  commencement  thereof,  de- 
signate the  boundaries  of  the  lot,  so  as  to  fix  the 
amount  which  shall  be  considered  as  appurtenant  to 
the  building.  To  this,  we  presume,  there  can  be  no 
objection,  as  it  will  take  place  before  any  right  ac- 
crues to  the  mechanic,  and  is  to  be  entered,  in  the 
book  w^e  have  mentioned.  The  5th,  6th  and  7th  sec- 
tions, provide  for  the  case  of  the  owner  having  failed 
to  make  such  designation,  and  authorize  the  Court,  on 
the  application  of  any  person,  interested,  to  appoint 
commissioners,  to  examine  and  report  on  the  proper 
extent  of  these  appurtenances,  and  provide  for  tlie 
due  execution  of  their  duties,  by  the  commissioners. 
In  the  8th  section,  power  is  given  to  the  court,  to  stay 
execution  upon  any  judgment  or  other  proceeding, 
until  the  extent  of  the  boundaries  shall  be  designated 
by  commissioners,  as  aforesaid;  and  the  9th  section 
recognises  the  power,  at  present  exercised  by  the 
courts,  of  apportioning  the  proceeds  of  a  sheriff's  sale 
of  real  estate,  according  to  the  extent  of  the  several 
liens. 

"  These  sections  have  been  framed  with  a  view  to  the 


144  EXTENT  OF  THE  SUBJECT. 

just  rights  of  the  various  parties  interested,  as  well 
judgment  creditors  and  mortgagees,  as  the  builders 
and  owners  of  the  ground,  and  will  be  found,  we  think, 
to  provide,  at  least,  some  improvement  on  the  present 
law,  by  relieving  the  public  and  the  parties  from  the 
frequent  and  protracted  litigation,  to  which  the  pre- 
vailing uncertainty  respecting  the  extent  of  lien,  gives 
risc."^ 

In  the  Act  of  183G,  for  the  first  time,  there  is  an 
express  enactment  upon  the  subject.  It  is  as  follows : 
"  The  lien  of  such  debt  shall  extend  to  the  ground 
covered  by  such  building,  and  to  so  much  other  ground, 
immediately  adjacent  thereto,  and  belonging,  in  like 
manner,  to  the  owner  of  such  building,  as  may  be  ne- 
cessary for  the  ordinary  and  useful  purposes  of  such 
building,  the  quantity  and  boundaries  whereof,  shall 
be  determined  as  follows:" 

We  need  not  copy,  here,  the  sections  which  follow, 
and  which,  appear,  at  large,  in  the  appendix.  A  brief 
abstract  will  be  more  acceptable.  Each  prothonotary 
is  required  to  keep  a  "  Mechanic's  lien  docket,"  for  re- 
cording all  descriptions,  and  all  claims  filed,  with  the 
dates  of  filing  them,  and  the  names  of  owners,  contrac- 
tors, and  lien  claimants,  alphabetically  indexed.  Any 
person,  who  is  about  to  build,  may  define,  in  writing, 
''the  boundary  of  the  lot  or  curtilage  appurtenant  to 
his  building,"  before  commencing  its  erection;  and, 
when  this  writing  is  entered  in  the  docket,  all  persons 
shall  130  bound  by  the  description.     If  the  owner  fails 

^  Ecport  of  the  Commissioners. 


EXTENT  OF  THE  SUBJECT.  145 

to  clo  tliis,  either  he,  or  any  one  "having  a  hen  on" 
the  lot,  "hy  mortgage,  judgment  or  otherwise,  or  en- 
titled to  a  lien  by  this  Act,"  may,  before  the  commence- 
ment of  the  building,  apply  to  the  court,  to  appoint 
commissioners,  to  designate  the  boundaries.  The  court, 
after  reasonable  notice  to  all  interested,  may  appoint 
such  commissioners,  as  they  shall  nominate,  or,  if 
they  cannot  agree,  such  as  it  thinks  proper.  These 
commissioners  are  to  report  to  the  court,  by  metes 
and  bounds,  with  courses  and  distances,  and  a  draft, 
if  required,  "the  limits  and  extent  of  ground  neces- 
sary for  the  convenient  use  of  such  building,  for  the 
purposes  for  which  it  is  designated,"  and  their  report, 
when  entered  in  the  docket,  and  approved,  is  to  be  con- 
clusive. If  execution  issues,  before  the  boundaries  are 
thus  ascertained,  the  court  may  stay  it ;  and  when  they 
are  ascertained,  may  "order  the  sale  to  proceed,  in 
such  manner,  and  for  such  part  or  parts,  and  in  such 
parcels,  as  shall  be  most  convenient,  for  the  adminis- 
tration of  equity  among  all  persons  interested."  If 
the  building,  or  adjacent  ground  be  sold,  by  virtue  of 
an  execution,  "upon  any  mortgage  or  judgment," 
before  the  extent  of  the  claimant's  lien  is  ascertained, 
the  court  shall  determine  the  rights  of  all  concerned, 
in  the  usual  way. 

Tliis  mode  of  defining,  by  anticipation,  the  bounda- 
ries of  the  premises  to  be  affected  by  the  lien,  is  very 
rarely  adopted,  as  far  as  we  can  learn. 

We  find  but  two  cases  bearing  upon  this  sulyect, 
since  the  Act  of  183G.     One  of  them  arose  upon  the 
report  of  a  commissioner  to  ascertain  boundaries,  under 
10 


14  G  EXTENT  OF  THE  SUBJECT. 

the  sections  just  referred  to;  another,  in  a  proceeding 
to  distribute  the  proceeds  of  a  sheriff's  sale. 

In  the  former,  which  was  in  the  Common  Pleas  of 
Lancaster  county,  Lewis,  J.,  held,  that  a  claim  filed 
against  a  church  did  not  include  a  grave-yard  con- 
nected with  it,  in  the  usual  way.^ 

In  the  latter  of  these  cases,  a  feigned  issue  was  di- 
rected, under  the  Act  providing  for  the  distribution  of 
the  proceeds  of  a  sale  by  the  sheriff.  The  plaintiff, 
in  this  issue,  was  a  judgment  creditor;  the  defendant, 
one  who  claimed  under  mechanic's  claims ;  and  the 
question  which  arose  was,  what  part  of  the  land  sold 
was  liable  to  the  claims,  and  what  not. 

The  levy  was  on  a  steam  saw  mill  and  ground 
having  a  front  of  ninety  feet.  The  sale  v>'as  of  a 
steam  saw  mill  and  a  lot  sixty  feet  front,  and  also  of 
a  lot  thirty  feet  front,  sold  separately  and  distinctly. 
The  defendant  asked  the  court  to  instruct  the  jury, 
"  that  if  the  owner  of  the  propert}'-  laid  off  the  ninety 
feet,  as  necessary  for  the  mill,  and  made  the  contracts 
with  the  mechanics  and  material  men,  to  bestow  their 
labour  and  materials,  the  plaintiff  was  not  entitled  to 
recover." 

The  court  charged  the  jurj^  as  follows  :  "  You  have 
heard  all  the  evidence,  and  have  viewed  the  ground 
'and  buildings,  and  are,  no  doubt,  well  prepared  to 
decide  the  case.  AYas  the  half  lot  necessar}^  for  the 
convenient  use  of  the  building,  for  the  purposes  for 
which  it  was  intended  ?     If  so,  you  will  find  for  the 

1  Beam  v.  First  Meth.  Ep.  Church,  5  Pa.  L.  J.  287. 


EXTENT  OF  THE  SUBJECT.  147 

defendant.  If  part  of  it  was  thus  necessary,  you  will 
determine  what  that  part  is,  and  the  proportion  of  the 
price  for  which  this  half  lot  was  sold,  which  should  be 
appropriated  to  the  mechanics'  liens.  In  determining 
this  question,  you  w^ill  consider  the  manner  in  which 
it  has  been  used  by  the  owner  of  the  lots  and  building, 
what  they  said  about  it,  what  others  have  testified  in 
relation  to  it ;  and,  also,  your  own  observations,  made 
when  on  the  ground,  may  tend  to  aid  you  in  the  de- 
termination of  this  question."  The  charge  was  sus- 
tained by  the  Supreme  Court  on  appeal.^ 

It  would  appear,  from  this  latter  case,  to  be  a  ques- 
tion for  the  jury,  how  much  ground  is  "necessary  for 
the  convenient  use"  of  the  building,  "for  the  purpose 
for  which  it  was  designed."  But,  whatever  tribunal 
is  to  decide  it,  it  is,  by  no  means,  free  from  embarrass- 
ment. In  a  mere  question  of  boundary,  there  may  be 
but  little  difficulty,  in  a  city;  more,  perhaps,  in  the 
county.  But  the  subjects  of  appurtenances,  and  of 
fixtures,  or  accessions  are  not  clear,  and  the  usual  dif- 
ficulties in  dealing  with  them  are  complicated  with 
new  and  peculiar  views,  arising  under  the  Acts  upon 
wdiich  we  are  now  commenting. 

The  case  of  Werth  v.  Worth,  just  referred  to,  in 
which  a  barn  was  the  subject  of  the  lien,  and  the 
novel  duty  was  imposed  upon  the  commissioner,  of 
ascertaining  how  much  land  was  necessary  for  enjoy- 
ing it,  in  the  usual  way,  is  an  example  of  the  kind  of 
questions  tliat  may  arise.    It  is  by  no  means  clear,  that 


»  Keppel  V.  Jackson,  3  W.  &  S.  323. 


148  EXTENT  OF  THE  SUBJECT. 

the  commissioner  would  have  been  wrong,  if  he  had, 
when  the  barn  was  given  to  him  as  a  principal,  found 
the  dwelling  house,  or  even  the  whole  plantation,  an 
incident  or  accessory,  necessary  to  its  proper  enjoy- 
ment. For  a  barn  in  the  midst  of  a  plantation,  with- 
out more,  would  be  almost  as  valueless  as  a  building 
without  the  ground  on  which  it  is  built.  The  same 
remarks  may  be  made  in  reference  to  other  of  the 
structures  usually  called  out-houses. 

The  same  principles,  of  course,  that  govern,  in  as- 
certaining what  is  necessary  to  the  convenient  use  of 
a  single  house,  would  apply,  in  deciding  between  ad- 
joining houses,  against  which  apportioned  claims  are 
filed. 

In  practice,  the  parties,  not  only,  seldom  resort  to 
the  mode  of  ascertaining  boundaries  pointed  out  by 
the  Act  of  1836,  but,  very  frequently,  fail,  altogether, 
to  describe,  in  their  claims,  the  premises  which  they 
seek  to  afi'ect  with  a  lien,  by  metes  and  bounds. 

Thus,  in  one  case,  we  find  a  claim  sustained  against 
"a  three  storied  brick  house  situated  on  the  South 
side  of  Walnut  street,  between  Eleventh  and  Twelfth 
streets;"  in  another,  against  "a  lot  on  the  North  side 
of  Lombard  street,  West  of  Ninth  street,  adjoining 
Stephen  Smith's  lot,  on  the  east;"  in  another,  against 
premises  "in  Dillersville,  adjoining  land  of  Peter  Hentz 
and  the  Pennsylvania  Kailroad."  We  might  mention 
many  others,  in  which  no  mention  is  made  of  distances, 
lines  of  survey,  feet  or  inches,  or  boundaries.^ 

1  See  Post. 


EXTENT  OF  THE  SUBJECT.  149 

Indeed,  so  ranch  latitude  is  allowed,  in  this  respect, 
that  a  jury  has  often  a  double  task  to  perform;  first, 
that  of  deciding  whether  the  locality  of  the  premises 
is  sufficiently  indicated;  and,  secondly,  what  surface 
and  what  appurtenances  are  included  by  implication. 
It  is  not  until  the  party  comes  to  make  sale  under  a 
writ  of  levari  facias,  that  an  accurate  description  is 
given. 

This  vagueness  of  description,  however,  has,  per- 
haps, one  advantage.  No  one  doubts,  that  if  the  party 
filing  a  claim  is  able  to  do  so  with  certainty,  he  had 
better  describe  the  premises  with  all  the  accuracy  of 
a  deed  or  mortgage.  But  if  he  should  do  so,  without 
certainty,  he  may  include  too  little,  and  be  bound  by 
his  claim.  We  know  of  no  decision  which  leads  us 
to  doubt  the  law  laid  down  in  M'Donald  v.  Lindal], 
before  mentioned,  that  the  lien  will  not  extend  beyond 
the  land  expressly  described  in  the  claim,  even  where 
more  might  have  been  included. 

We  shall,  in  a  subsequent  chapter,  state  the  mode 
in  which  a  plaintiff  may  reach  a  judicial  ascertainment 
of  the  extent  of  his  lien,  in  respect  of  surface,  and  the 
metes  and  bounds  which  are  proper  for  his  writ  of 
Jcvai-l  facias;  and,  also,  the  manner  in  which  a  defend- 
ant may  relieve  himself  from  an  excessive  levy. 


150  THE  ESTATE  AFFECTED. 


CHxiPTER  III. 

OF  THE  SUBJECT  OF  THE  LIEN  "\riTn  EEFERENCE   TO   THE 
ESTATE. 

It  will  be,  at  once,  apparent,  upon  a  reference  to 
earlier  Acts,  that,  while  tenants  for  years,  tenants  for 
life,  owners  of  equities,  only,  and  even  trespassers  may 
build,  no  part  of  any  of  their  enactments  throws  light 
upon  the  question,  what  estate  is,  in  each  instance,  af- 
fected by  the  lien,  or  passes  by  a  sale  under  the  pro- 
ceedings to  which  the  mechanics'  claim  gives  rise. 

The  point,  however,  soon  suggested  itself  to  coun- 
sel, and  the  courts  were  obliged,  by  decision,  to  supply 
*the  omissions  of  the  statutes. 

"We  have,  heretofore,  referred  to  many  of  the  cases 
which  follow,  in  considering  wdio  may  pledge  the  credit 
of  the  building.     AVe  now  notice  them  more  fully. 

In  the  case  of  Savoy  v.  Jones,  a  married  w^oman, 
cestui  qui  trust  for  life,  under  a  marriage  settlement, 
wdiich  gave  her  husband  a  contingent  remainder  for  life, 
and  other  interests  over,  erected  a  building,  during  her 
coverture.  One  of  the  material-men  filed  a  lien  against 
her,  the  husband  and  the  trustee.  The  wife  died, 
while  the  proceeding  under  it  was  pending,  and,  upon 
her  death,  the  point  was  made,  that  the  estate  of  the 


THE  ESTATE  AFFECTED.  '  151 

person  who  erected  the  building  being  ended,  the  hen 
was  gone.  It  was  held  by  the  court,  however,  that 
the  lien  arose  from  a  credit  given  to  the  building,  not 
to  the  owners ;  that  all  the  remainder  men  and  rever- 
sioners were  benefited  by  the  building,  and  that  it 
w^as  just  that  the  whole  estate  should  be  bound. ^ 

In  the  case  of  Barnes  v.  Wright,  the  court  intimated, 
that  this  point  could  not  be  considered  as  definitively 
settled,  and  might  be  reconsidered.^  In  a  case,  too,  in 
the  Circuit  Court  of  the  United  States,  the  leaning 
seems  to  be  against  the  doctrine  announced  in  Savoy 
V.  Jones.^ 

But  in  the  case  of  Bickel  v.  James,  Gibson,  Ch.  J., 
speaking  of  the  Act  of  1836,  says : — "  By  the  primitive 
Act  of  1803,  supplied  by  the  Act  of  1806,  on  which, 
with  the  supplement  of  1808,  the  present  question  de- 
pends, the  legislature  hypothecated  buildings  for  debts 
contracted  in  the  construction  of  them.  No  more  was 
contemplated  in  it,  than  the  usual  case  of  a  builder, 
on  his  ov/n  ground,  and,  hence,  in  an  action  against 
the  legal  owner,  a  lien  was  not  allowed  for  materials 
furnished  on  the  order  of  a  vendee,  by  articles  of  agree- 
ment, because,  an  action  to  enforce  it  could  be  main- 
tained only  on  the  contract  by  which  the  debt  was 
incurred,  and  of  which  the  lien  was  an  accessory. 
Steinmetz  v.  Boudinot,  3  Serg.  &  Rawle,  541.  The 
legislature  had  provided  no  means  of  enforcement  but 


J  2  Ft.  350.     And  see  Anshutz  v.  M'Ck'lland,  5  W.  487. 

=  2  Wb.  193. 

=>  2  Wash.  C.  C.  R.  :J3.     And  sec  Kline  v.  Lewis,  1  Ash.  32. 


152  THE  ESTATE  AFFECTED. 

an  action;  and  it  could,  of  course,  be  maintained  only 
against  the  contractor.  Had  it  been  brought  against 
him,  in  that  instance,  it  would  have  raised  a  question 
like  the  present,  but  depending  on  different  provisions; 
yet  it  might  not  have  been  impossible  to  maintain, 
even  under  the  Act  of  1803,  that  an  equitable  vendee 
was  an  owner,  within  the  purview  of  it.  That  it 
would,  certainly,  have  been  so  adjudged,  I  pretend 
not  to  assert;  for  the  lien  having  been  but  an  acces- 
sory of  an  inchoate  estate,  might,  readil}^,  have  been 
postponed  to  the  legal  title;  and  I  think  it  probable, 
that  a  Mechanic's  Lien,  like  a  judgment,  would  have 
bound  only  the  equitable  estate  of  the  vendee.  But 
the  glimpse  which  the  legislature  then  had  of  the  sub- 
ject, was  barely  sufficient  for  a  sketch  of  its  first  lines; 
for  it  was  soon  found,  in  the  city  of  Philadelphia,  and 
those  districts  of  the  county  to  which  the  primitive 
Act  w^as  confined,  that  contracts  for  labour  and  ma- 
terials were,  usually,  made,  not  by  owners,  building 
for  themselves,  but  by  architects  employed  to  build 
and  contract  on  their  own  credit.  Hence,  a  radical 
change  in  the  principle  of  hypothecation,  by  the  Act 
of  ISOG.  The  lien  was,  no  longer,  an  accessory  of 
the  owner's  title,  but  became  an  independent  incum- 
brance ;  insomuch,  as  not  to  require  a  title  to  have  been 
in  him  at  all.  Every  thing  about  ownership  was  sup- 
pressed, and  the  building,  itself,  became  the  principal 
debtor ;  but  still,  answerable,  only,  by  an  action  against 
the  contractor. 

"  Then  came  the  supplement  of  1808,  which  gave,  in 
addition,  a  scire  facias,  jointly,  against  the  owner  and 


THE  ESTATE  AFFECTED.  153 

the  contractor;  and  strictly,  as  a  proceeding  iii  rem. 
As  was  recognised  in  Savoy  v.  Jones,  2  Eawle,  343, 
the  credit,  under  these  two  Acts,  was,  primarily,  given 
to  the  building,  and  though  the  builder,  also,  was  lia- 
ble on  his  contract,  the  action,  so  far  as  it  was  used 
to  enforce  the  lien,  was,  also,  a  proceeding  in  rem.  It 
is  entirely  omitted  in  the  Act  of  1836,  which  has  su- 
perseded all  antecedent  legislation  on  the  subject. 
But  the  project  of  the  legislature,  in  the  preceding 
Acts,  has  been,  as  it  still  is,  to  secure  to  the  mechanic, 
or  material  man,  the  fruit  of  his  labour  or  materials, 
by  selling  the  building,  of  which  it  happened  to  be  a 
component  part,  without  regard  to  the  ground.  The 
latter  was  a  subject  of  so  little  consideration,  as  not 
to  have  been  mentioned  in  either  of  them;  and,  that 
it  is  sold  as  an  appurtenance  of  the  building,  is  because 
it  could  not  be  severed  from  it.  But,  where  the  build- 
ing and  the  ground  fetch,  as  they  must  generally  do, 
more  than  the  amount  of  the  liens,  I  see  not  what 
difficulty  there  can  be,  according  to  an  obvious  prin- 
ciple of  equitable  conversion,  in  substituting  the  sur- 
plus purchase  money,  for  the  realty  which  produced 
it,  and  giving  it,  respectively,  to  the  owners  of  the  fee, 
in  proportion  to  their  interests  in  it.  By  this,  there 
can  seldom  be  a  loss,  and  never  an  injustice;  for  the 
question  is,  whether  the  building  shall  follow  the 
ownership  of  the  ground,  or  the  ground  follow  the 
ownership  of  the  Ijuilding,  If  decided  for  the  claim- 
ant, the  owner  will,  in  most  cases,  be  paid  for  his 
ground;  l)ut  if  for  the  owner,  he  will,  in  all  cases,  get 
the  benefit  of  another's  uncompensated  labour  or  ma- 


154  THE  ESTATE  AFFECTED. 

terials,  in  addition  to  it.  Were  the  building  sold  with- 
out the  ground,  the  interests  in  the  freehold  would 
not  be  disturbed;  but,  as  that  is  impracticable,  a  con- 
sequent loss  may,  sometimes,  have  to  be  shared  by 
claimants,  under  the  same  title,  of  separate  interests 
in  the  fee."^ 

In  this  case  it  was  held,  that  a  vendee  of  land  under 
articles  of  agreement,  who  had  not  yet  acquired  a  le- 
gal title,  but  who  entered  and  built,  subjected  the  fee 
simple  of  the  land  to  his  lien,  and  that  a  sale  under  it 
vested  a  complete  and  absolute  title  in  the  purchaser. 

The  same  doctrine  was  announced,  with  equal  posi- 
tiveness,  by  Kennedy,  J.,  in  a  subsequent  case.^ 

In  the  case  of  O'Conner  v.  Warner,  v/hich  was  de- 
cided after  the  Act  of  1840,  to  which  we  are  about  to 
refer,  Gibson,  Ch.  J.,  says,  upon  this  subject:  "It 
would  puzzle  those  who  controvert  the  principle  of 
Savoy  V.  Jones^  and  the  subsequent  cases  of  that 
stamp,  to  give  a  reason  for  the  faith  that  is  in  them, 
beyond  tlie  apparent  hardship  of  the  case.  The  debt 
secured  by  the  Act  of  1806,  was  the  debt  of  the 
building,  not  of  any  owner  of  it;  the  lien  was  on  the 
building;  the  process  was  against  the  building;  and 
the  building  itself,  not  the  builder's  interest  in  it,  was 
directed  to  be  sold.  The  debt  was  charged  on  it,  as 
taxes  are  charged  on  unseated  land,  without  regard  to 
the  ownership;  and,  we  are  bound  to  say,  the  build- 
ing was  sold  like  unseated  land,  without  [regard  to 
the  ownership.      To  do  otherwise,  would  have   re- 

'  7  W.  9.  *  Holdship  v.  Abercombie,  9  W.  53. 


THE  ESTATE  AFFECTED.  155 

quired  us  to  interpolate  the  very  provision  which 
has  been  recently,  hut  incautiously,  interpolated  by 
the  legislature,  and  thus,  perform  an  act  of  judicial  le- 
gislation, not  less  abhorrent  to  the  principles  of  the 
constitution,  than  an  Act  of  legislative  adjudication. 
We  could  not  say,  that  the  estate  in  expectancy  was 
excluded  from  the  lien  by  the  spirit  of  the  Act,  or  that 
it  would  have  been  protected,  had  the  case  been  fore- 
seen. The  avowed  object  was,  to  protect  the  mecha- 
nic or  material  man,  without  regard  to  any  one  else ; 
and,  that  the  reversioner  or  remainder-man  was  in- 
tended to  be  put  on  a  footing  with  the  tenant  in  pos- 
session, is  evident  from  the  clause  which  authorized 
"any  person  interested  in  the  building"  to  call  for  a 
formal  entry  of  satisfaction;  for  it  would  have  been 
absurd  to  give  him  a  right  to  expunge  the  evidence 
of  the  lien,  if  he  might  not  be  affected  by  it.  And 
this  liability  of  separate  interests,  to  contribution  to- 
wards a  general  burden,  though  sometimes  attended 
with  hardship,  in  practice,  was  just  in  its  principle, 
inasmuch  as  it  was  calculated  to  produce  the  results 
which  equity  produces,  when  it  apportions  a  general 
charge  among  owners  of  the  separate  parts  of  a  fee, 
in  proportion  to  their  relative  value  and  the  benefit 
received  by  each  from  the  consideration  of  the  incum- 
brance. Besides  this,  the  injustice  of  allowing  the 
claimant  to  follow  his  materials,  or  the  products  of 
his  labour,  into  the  hands  of  a  reversioner  or  a  re- 
mainder man  was  no  greater,  than  the  injustice  of  al- 
lowing him  to  follow  them  into  the  hands  of  the  te- 
nant in  possession,  wlio  was  as  much  a  stranger  to  the 


15G  THE  ESTATE  AFFECTED. 

debt,  and  who  did  no  more  than  authorize  the  erection, 
hut  without  authorizing  the  contractor  to  charge  the 
building  with  the  price  of  it.  The  Law  did  that ;  and  it 
was  just  as  unconscionable  to  affect  the  ownership  of  the 
particular  tenant  by  it,  as  it  was  to  affect  the  ownership 
of  his  successor,  who  derived  equal  or  greater  benefit 
from  the  erection.  It  was,  for  the  very  reason,  tliat 
the  operation  had  to  do  with  the  contractor,  and  not 
with  the  owner,  that  he  was  allowed  to  charge  the 
building,  without  regard  to  the  ownership  of  it,  of 
which  he  could  know  nothing.  The  fallacy  is,  in 
imagining,  that  he  stands  more  in  privity  with  the 
tenant  in  possession,  than  with  those  that  are  to  come 
after  him.  He  has  no  connexion  with  any  of  them ; 
and,  therefore,  it  is,  that  the  statute  allows  him  to 
charge  the  building,  without  discrimination,  in  regard 
to  their  particular  interests.  Nor  is  such  a  statute  a 
novelty  in  the  history  of  legislation.  The  21  Jac.  1, 
c.  19,  subjects  a  bankrupt's  entailed  estate  to  pay- 
ment of  his  debts,  and  makes  the  conveyance  of  the 
commissioners  good  against  the  issue  in  tail,  to  say 
nothing  of  those  statutes  which  enable  tenants  in  tail 
to  make  leases  for  three  lives,  or  to  forfeit  the  estate 
for  treason,  or  to  incumber  it  with  debts  to  the  crown. 
Our  own  statute  for  barring  entails,  by  the  acknow- 
ledgment of  an  assurance,  in  open  court,  enables  him, 
not  only,  to  disinherit  the  issue  in  tail,  but,  also,  to  di- 
vest the  estate  of  the  fee  simple  remainder  man. 
"Why,  then,  should  it  be  thought  a  thing  incredible, 
that  the  legislature  intended  to  charge  more  than  the 
interest  of  him  who  caused  the  building  to  be  erect- 


THE  ESTATE  APFECTED.  157 

eel  ?  Our  legislation,  for  almost  forty  years  breathed  one 
uniform  spirit  of  kindness  to  the  operative,  and  it  was 
not  without  our  special  wonder,  that  we  saw  it,  in 
1840,  breathe  a  hostile  one.  The  manifestation  of 
its  former  kindness  is  visible  in  the  enlargement  of 
the  system,  so  as  to  embrace  ships,  and  even  cur]3- 
stones,  and  in  the  gradual  diffusion  of  it  over  almost 
the  whole  state,  without  changing,  or  so  much  as 
touching  the  controverted  interpretation.  The  expe- 
rienced counsel  who  prepared  the  revised  Act  of  1836, 
with  Savoy  v.  Jones  before  their  eyes,  saw  nothing  in 
it  which  called  for  correction.  It  is  supposed,  how- 
ever, that  the  dayspring  of  1840  revealed  its  moral  de- 
formity, and  taught  the  legislature  to  shift  the  bur- 
den of  its  injustice  from  the  shoulders  of  the  inno- 
cent reversioner  or  remainder  man,  to  those  of  the 
more  innocent  purchaser,  who  had  paid  his  money  on 
the  faith  of  laws  constitutionally  enacted  and  ex- 
pounded. No  man  can  assent  to  a  proposition  so 
monstrous ;  yet  it  might  be  inferred  from  the  literal 
import  of  the  words,  that  such  was  the  design ;  and 
it  shows  the  dangerous  tendency  of  legislation  so  hur- 
ried as  to  produce  statutes  which  are  a  surprise  on 
those  who  have  enacted  them.  The  section  of  1840, 
even  in  its  prospective  operation,  goes  far  to  sap  the 
foundation  of  the  mechanic's  protection ;  and  we  can- 
not think  the  legislature  was  apprized  of  the  drift  of 
the  section,  when  it  struck  the  blow  at  interests  so 
long  and  so  anxiously  chen.shcd.  AVhen  tlie  mechanic 
can  sell  no  more  than  a  lease  burdened  with  a  rent, 
to  the  extent  of  its  value,  his  lien  will  be  worthless  j 


158  THE  ESTATE  AFFECTED. 

and,  when  a  grantor  of  ground  let  on  a  perpetual 
lease,  for  the  very  purpose  of  being  built  on,  enters, 
for  non-payment  of  the  ground  rent,  he  will,  necessa- 
rily, hold  paramount  to  mechanic's  liens.  Or,  where 
the  person  in  possession  has  but  an  equitable  title, 
those  liens  will  be  postponed  to  the  vendor's  claim  for 
the  purchase  money.  There  must  be  many  such 
cases."  ^ 

The  case  of  McClelland  v.  Heron,  which,  also,  was  de- 
cided after  the  Act  of  18-10,  but  upon  facts  arising 
before  its  passage,  led  some  to  doubt,  whether  the 
doctrine  of  Savoy  v.  Jones  had  been  firmly  established. 
But  a  careful  examination  will  show,  that  it  ought  to 
have  had  no  such  effect.  It  was  the  case  of  a  levy, 
under  proceedings  upon  a  mechanic's  lien,  upon  "all 
the  right,  title,  interest,  and  claim  of  the  defendant,  of, 
in  and  to  a  certain  brick  tan-house."  The  defendant 
was  but  a  tenant  for  years,  and  the  court  held  that 
only  the  term  passed."^ 

The  nature  of  the  levy  was  enough  to  distinguish 
this  case  from  others  to  which  we  have  referred.  But 
Burnside,  J.,  who  delivered  the  opinion  of  the  court, 
uses  language  which  seems  to  cast  some  doubt  on  them. 

In  a  later  decision,  however,  Gibson,  Ch.  J.,  says: 
"Let  us  not  produce  a  conflict  of  decisions,  for  a  doubt- 
ful interpretation.  The  judgment  in  M'Clelland  v. 
Herron,  4  B.  G7,  did  not  produce  it,  for  no  more  was 
ruled,  than,  that  a  levy  and  sale  of  the  term  did  not 
pass  the  fee."^ 

M  W.  &  S.  223.       2  4  B  (33_      s  Haworth  v.  Wallace,  2  H.  121. 


THE  ESTATE  AFFECTED.  159 

We  ought  to  mention,  here,  however,  before  we 
refer  to  the  Act  of  1840,  and  its  effect,  that  there  were 
exceptions  to  the  appUcation  of  the  doctrine  of  Savoy 
V.  Jones. 

In  the  case  of  Bruner  v.  Sheik,  an  insurance  com- 
pany, in  discharge  of  its  liability  under  a  policy  of  insu- 
rance, rebuilt  a  dwelling  upon  land  of  the  insured. 
The  mechanics  and  material  men  were  held  to  have 
no  liens. 

Gibson,  Ch.  J.,  says :  In  Siner  v.  Moore,  it  was  de- 
termined, at  the  last  term  in  Philadelphia,  that  the 
possession  of  the  person  whose  title  is  to  be  incumbered, 
must  be  an  actual,  not  a  constructive  one;  but,  here, 
the  company,  at  whose  instance  the  lumber  w^as  fur- 
nished, had  neither  possession  nor  colour  of  title.  It 
had  no  more  than  an  incidental  right  to  enter,  in  order 
to  rebuild,  without,  in  the  least  degree,  displacing  the 
possession  of  the  insured.  Nor  were  the  articles  fur- 
nished for  their  benefit,  but  for  the  benefit  of  the  com- 
pany, which  was  bound  by  its  election  to  rebuild."  ^ 

It  is  proper  to  add  here,  that  the  material  man,  in 
this  case,  appears  to  liave  had  notice  of  the  relations 
of  the  parties. 

It  would,  of  course,  follow,  that  a  mere  trespasser 
upon  land  could  not  bind  the  adverse  title  by  build- 
ing. This  had  not  been  expressly  held,  but,  prior  to 
the  Act  of  1840,  Gibson,  Ch.  J.,  says:  "It  may  be, 
however,  that  an  adverse  title  would  not  be  afiectcd. 
A  trespasser  in  possession  is  not  allowed  to  charge 


'  1)  AV.  &  S.  119. 


IGO  THE  ESTATE  AFFECTED. 

tlie  owner  for  adverse  improvements;  and  it  may  not 
have  been  the  design  of  the  legislature  to  give  a 
greater  power  to  agents  in  his  employment,  who  are 
also  trespassers."  ^ 

We  now  come  to  a  new  period  in  the  history  of  this 
subject.  By  an  Act  of  1840  it  was  enacted  that  the 
lien  should,  "not  be  construed  to  extend  to  any  other 
or  greater  estate  in  the  ground  on  which  any  build- 
ing may  be  erected  than  that  of  the  person  or  persons 
in  possession  at  the  time  of  commencing  the  said 
building,  and  at  whose  instance  the  same  is  erected," 
nor  should  "any  other  or  greater  estate  than  that 
above  described  be  sold  by  virtue  of  any  execution 
authorized  or  directed  in  the  said  Act." 

This  Act  is  said,  by  Gibson,  Ch.  J.,  in  one  of  his 
decisions,  to  have  been  "produced"  by  the  case  of 
Bickel  V.  James.^ 

In  cases  which  arose  under  this  Act,  it  was  held, 
that  it  affected  liens  filed,  as  well,  before,  as  after  its 
passage,  and  was  not  unconstitutional,  by  reason  of  this 
retroactive  effect,  because  it  only  modified  a  remedy."^ 

Under  it,  of  course,  the  earlier  cases  are  inapplicable. 
They  only  govern  titles  which  were  created  under  the 
law  before  its  passage.  By  its  provisions  no  one  who 
builds  can  bind  a  greater  estate  than  he  has  himself. 
And  the  knowledge,  simplj^,  or  even  the  assent  of  the 
owner  of  the  fee,  cannot,  as  it  would  appear  from  the 


1  Eickcl  V.  James,  7  W.  12.  ^  Churcli  v.  Griffith,  9  B.  119. 

'  Evans  v.  Montgomery,  4  "W.  &  S,  218.     O'Conner  v.  \Yarner, 
id.  223.     And  see  ante,  p.  41. 


THE  ESTATE  AFFECTED.  161 

words  of  the  Act,  subject  his  estate  to  the  lien.  The 
erection  must  be,  at  his  "instance,"  to  produce  that  re- 
sult, and  he  must  be  the  person  in  possession,  at  the 
time  of  commencing  the  building. 

We  must  not  omit,  in  this  connexion,  a  case  which 
arose  after  the  Act  of  1840,  in  which  it  was  held,  that, 
where  the  person  at  whose  instance  the  building  was 
erected  had  but  an  equitable  title,  at  the  time  the 
work  was  done  and  the  lien  attached,  but,  afterwards, 
acquired  the  legal  estate,  the  latter,  at  once,  became 
bound ;  the  rule  in  such  a  case  being  the  same  with 
that  which  prevails  with  reference  to  judgments.^ 

And,  bearing  upon  the  same  point,  is  the  decision  in 
Gaule  V.  Bilyeau,  already  quoted,  in  which  the  person 
against  whom  the  claim  was  filed,  had  leased  the  pre- 
mises for  seven  years,  with  the  express  provision  of 
purchasing  a  part  of  it,  upon  a  designated  ground 
rent,  at  any  time  within  three  years,  had  erected  the 
building,  and,  very  soon  afterward,  availed  himself  of 
his  privilege  of  purchasing,  and  received  a  deed  for  the 
property.  Lewis,  Ch.  J.,  held,  that  the  tenant,  having 
a  right  to  acquire  the  fee  when  he  built,  must  be 
treated  as  having  an  equitable  estate  in  the  land, 
which  was  the  subject  of  a  claim.^ 

"We  ought,  also,  to  observe,  that  it  was  subsequently 
to  the  Act  of  1840,  that  the  decisions  were  made,  to 
which  we  have  before  referred,  in  respect  to  erections 
by  tenants  of  leasehold  estates,  and  their  character 
as  personalty.      It  is  most  distinctly  intimated,  in 


Lyons  v.  M'Gaffcy,  4  13.  126.  ''  Sec  anfr,  p.  U'.i. 

11 


1G2  THE  ESTATE  AFFECTED. 

these  decisions,  that  prior  to  the  Act  of  1840,  a  build- 
ing by  a  termor,  even  for  the  purpose  of  his  trade, 
would  have  affected  the  fee  simple;  that  an  "erection 
or  construction  by  any  one  who  had  an  estate  in  the 
land,  as  distinguished  from  a  mere  trespasser,  bound 
the  whole  estate;  though,  as  between  the  parties  in- 
terested, the  present  estate  might  have  been  a  chattel 
interest,  only,  and  the  building  personalty :  but  that 
after  the  passage  of  that  Act,  the  lien  was  left  to 
stand  upon  the  estate  of  the  person  in  possession,  and 
building,  alone,  and,  when  that  was  a  mere  chattel 
interest,  the  building  partook  of  the  same  character,  and 
was  not  subject  to  proceedings  under  the  Acts  which 
we  are  considering,  which  apply  only  to  real  interest. 


PART  lY. 


OF  THE  NATURE,  AND  EFFECT,  AND  OF  THE  DISCHARGE 
OF  THE  LIEN. 


CHAPTER  I. 

GENERAL  REMARKS  ON  THE  LIEN. 

The  mecliimics'  lien  is  one  of  a  peculiar  character. 
It  differs,  in  some  respects,  from  any  other  lien  known 
to  the  law.  Those  which  most  resemble  it  are  muni- 
cipal liens,  for  public  dues. 

It  may  begin  without  any  writing,  entry  or  record, 
whatever ;  and,  when  it  attaches,  it  has  relation  back, 
at  once,  to  a  period,  often  doubtful  and  undefined,  and 
the  ascertainment  of  which  depends  upon  evidence  in 
pays.  It  lasts,  without  any  further  form  or  notice, 
for  a  certain  period,  and  may,  then,  be  further  con- 
tinued, by  filing  a  claim  and  keeping  it  alive  by  pro- 
cess. 

The  extent  of  the  lien,  as  to  amount,  has  no  limit 
but  the  honesty  and  moderation  of  the  creditor,  who, 
in  many  instances,  claims  more  than  he  hopes  to  re- 
cover, so  as  to  be  sure  to  comprehend  what  he  can 
actually  prove.  Double,  treble,  quadruple  claims 
may  be  filed,  for  the  same  debt.    Indeed,  often,  if  one 


164       GENERAL  REMARKS  ON  THE  LIEN. 

were  to  form  his  opinion  of  cost  from  the  alleged 
claims  of  mechanics  and  material  men,  and  add  to 
their  aggregate  what  he  knew  had  already  heen  paid, 
in  cash,  to  the  contractor,  he  would  have  a  most  ex- 
aggerated idea  of  the  expense  of  construction. 

A  purchaser  or  mortgagee  must  see  the  premises, 
and,  if  he  finds  a  house  newly  erected,  or  in  course  of 
construction,  he  must  refuse  to  purchase  or  to  lend 
his  money,  nntil,  in  some  mode  or  other,  he  can  as- 
sure himself  that  it  is  free  from  this  species  of  incum- 
brance; and,  even  then,  he  will  be  in  danger,  until  a 
certain  interval  has  elapsed,  after  the  completion  of 
the  building.  For  work  done,  or  materials  furnished, 
subsequently  to  his  purchase  or  loan,  will  have  a  pri- 
ority by  reason  of  their  relation  back  to  the  com- 
mencement. 

And,  after  the  house  is  completed,  and  the  interval 
spoken  of  has  elapsed;  when  the  time  has  come  for 
the  creditor  to  put  his  claim  on  record,  or  lose  it,  such 
license  is  allowed  in  the  form  of  the  claim,  in  the 
description  of  the  premises,  their  locality  and  extent, 
that  an  office  search  is  only  the  beginning  of  inquiry. 

These  remarks  will  give  a  faint  idea  of  the  trouble 
and  danger  which  arise  from  this  class  of  liens. 

The  claim  which  continues  the  lien,  and  affords  a 
basis  for  the  proceedings  which  lead  to  the  recovery 
of  the  amount  due,  is  purely  a  proceeding  yi  rem. 
So  entirely  is  it  a  remedy  against  the  land  alone,  that 
if,  pending  its  progress,  the  premises  are  sold,  the 
claimant  cannot  proceed  even  for  costs. ^ 

1  See  Post. 


GENERAL  EEIIARKS  ON  THE  LIEN.  165 

The  most  important  aspects  of  the  nature  and 
character  of  this  lien  are  with  reference  to  its  com- 
mencement, its  continuance,  its  relation  to  other  liens, 
and  its  release,  satisfaction  or  extinguishment.  In 
this  order  we  shall  pursue  the  subject. 


IGG  COMMENCEMENT  OF  THE  LIEN. 


CHAPTER  II. 

OF  THE  COMMENCEMENT  OF  THE  LIEN. 

The  Act  of  1803  made  the  debt  a  lien,  "before  any 
other  lien  which  originated  subsequent  to  the  com- 
mencement of  the  said  house  or  other  building."  The 
words  of  the  Act  of  1806  are  the  same.  Those  of  the 
Act  of  1836  run  thus:  "The  lien  for  Avork  and  ma- 
terials, as  aforesaid,  shall  be  preferred  to  every  other 
lien  or  incumbrance  which  attached  upon  such  build- 
ing and  ground,  or  either  of  them,  subsequently  to  the 
commencement  of  such  building." 

The  commencement  of  the  building  is,  of  course, 
the  first  work  done  upon  the  ground ;  the  striking  of 
the  spade  into  the  earth,  in  digging  the  foundation, 
or  if  there  be  no  such  foundation,  the  laying  of  the 
first  stone  or  timber.  No  case  decides,  that  work  done 
off  of  the  ground  can  make  a  commencement.  These 
seem  to  be  very  clear  propositions;  but  the  cases  show 
that  they  do  not  always  relieve  us  from  difficulty. 

A  change  of  ownership  during  the  progress  of  the 
building  does  not,  it  appears,  make  a  new  commence- 
ment. 

In  the  case  of  the  American  Fire  Insurance  Co.  v. 
Pringle,  an  unfinished  house  was  sold,  and  a  mortgage 
given  by  the  vendee  to  secure  the  purchase  money. 
The  vendee  then  went  on  with  the  building.     It  was 


COMMENCEMENT  OF  THE  LIEN.  167 

held,  that,  as  to  the  mechanics  and  material  men  em- 
ployed by  the  vendee,  after  his  purchase,  the  "com- 
mencement" of  the  building  was  the  original  com- 
mencement, by  the  vendor,  and  that  their  liens  cut 
out  the  mortgage.  To  this  opinion,  Yeates,  Justice, 
dissented.^ 

A  similar  decision  was  made,  however,  in  the  case 
of  Hern  v.  Hoj)kins.^ 

In  Pennock  v.  Hoover,  which  was  a  case  substan- 
tially resembUng  the  former,  the  court  says :  "  By  the 
terms  of  the  Act  of  Assembly,  before,  in  part,  recited, 
the  liens  thereby  given  to  mechanics  and  material 
men,  are  made  to  commence,  expressly,  from  the  com- 
mencement of  the  building  of  the  houses,  without 
reference  or  regard  to  the  persons  under  whose  direc- 
tions or  ownership  of  the  property  they  are  begun, 
continuing  to  be  the  same,  at  whose  instance  the  ma- 
terials, from  time  to  time,  shall  be  furnished,  and  the 
labour  performed,  throughout  the  subsequent  stages 
of  the  work,  until  finished.  It  is  not  the  commence- 
ment of  the  right  of  ownership,  or  claim  to  the  pro- 
perty; nor  yet  the  time  at  which  such  right  may  be 
first  exercised,  in  contracting  for  materials,  and  with 
mechanics,  for  the  purpose  of  continuing  the  building, 
that  is  to  fix  and  regulate  the  commencement  of  the 
liens,  on  behalf  of  those  furnishing  materials,  and  per- 
forming the  work;  nor  is  it  the  time  of  furnishing  ma- 
terials, or  the  time  of  commencing  or  finishing  tlie 
work,  but  the  time  of  commencing  the  building  of  the 


»  2  S.  &  R.  138.  » 13  S.  &  R.  2G9. 


168  COMMENCEMENT  OF  THE  LIEN. 

house,  that  gives  date  to  the  hen.  Now,  in  point  of 
fact,  as  long  as  the  design  or  use  for  which  the  house 
is  intended,  shall  continue  to  be  the  same,  a  change 
of  ownership,  after  the  building  of  it  is  commenced, 
does  not,  and,  in  the  very  nature  of  the  thing,  itself, 
cannot  change  the  commencement  of  the  building  of 
the  house;  that  must,  still,  continue  to  be  the  same, 
notwithstanding  the  right  of  property  in  the  ground, 
and  the  house  begun  upon  it,  shall  have  been  changed 
subsequently,  and  passed  through  twenty  or  more 
different  hands.  Neither  is  it  easy  to  conceive,  how 
a  change  made  in  the  plan  of  the  house,  after  it  has 
been  commenced,  by  enlarging  or  contracting,  or,  in 
any  other  respect,  changing  the  plan  of  it,  as  long  as 
the  original  design  of  its  character  is  retained,  can, 
with  propriety,  be  said,  to  change  or  give  a  new  com- 
mencement to  the  building  of  it.  And  the  Act  of 
Assembly  of  180G,  certainly,  contains  nothing,  which, 
in  the  slightest  degree,  militates  against  what,  I  think, 
may  be,  safely,  considered  the  universal  understanding, 
as  to  what  constitutes  the  commencement  of  the  build- 
ing of  a  house;  and  that  is,  the  first  labour  done  on 
the  ground  which  is  made  the  foundation  of  the  build- 
ing, and  to  form  part  of  the  work,  suitable  and  neces- 
sary for  its  construction."  ^ 

In  several  of  these  cases,  however,  it  is  intimated 
that  a  change  of  circumstances  would  alter  the  law. 
Thus  in  the  American  Fire  Insurance  Co.  v.  Pringle, 
the  court  say : — "  Houses  are  sometimes  finished,  suf- 

'  5  R.  307. 


COMMENCEMENT  OF  THE  LIEN.  169 

ficiently  for  particular  purposes,  such  as  ware-houses 
or  stores,  but  not  for  clweUing-houses;  and  they  may 
remain  in  this  situation  for  years,  and  then  be  com- 
pletely finished.  In  such  cases,  the  completion  of  the 
work  might  fairly  be  considered  as  a  neio  huilding, 
and  ought  net  to  be  connected  with  the  first  part  of 
the  building  so  as  to  give  a  lien  from  the  original  com- 
mencement." And,  in  Hern  v.  Hopkins,  the  same 
judge  says: — "Suppose,  for  instance,  a  ware-house 
should  be,  originally,  built  and  finished,  and  after  re- 
maining for  some  time,  in  this  situation,  it  should  be 
converted  into  a  dwelling-house, — there  the  new  work 
might  be  considered  as  a  new  building."^ 

And,  where,  instead  of  a  private  sale  of  the  premises, 
there  has  been  a  sherifi''s  sale,  which  discharged  all 
previous  liens,  the  work  done  and  materials  furnished 
thereafter,  must  have  reference  to  a  new  commence- 
ment, subsequent  to  the  sale.  Thus,  in  Stevenson  v. 
Stonehill,  the  court  say: — "Admit  that  the  lien  com- 
mences with  the  first  work,  the  sheriff's  sale  extin- 
guishes that  lien,  totally.  If  any  lien  in  favour  of 
material  men  or  mechanics  is  found  to  exist,  after  the 
sale,  it  must  commence  after  the  sale,  for,  so  far  as  it 
existed  before  the  sale,  it  has  totally  ceased."" 

The  result  of  these  cases  appears  to  be,  that  when, 
between  two  periods  of  continuous  and  substantial 
work  upon  a  Ijuilding,  there  is  an  interval,  it  does  not, 
ordinarily,  so  separate  them,  in  law,  as  to  lead  to  the 
doctrine  of  two  distinct  "erections"  and  two  distinct 

»  Ante.  »  5  Wh.  805.     See,  also,  Lcib  v.  Bean,  1  Ash.  208. 


170  COMMENCEMENT  OF  THE  LIEN. 

commencements ;  but  the  two  periods  are  treated  pre- 
cisely as  if  no  interval  had  occurred ;  but,  that  this 
ordinary  rule  or  prima  fades  may  be  rebutted  by  a 
very  great  lapse  of  time  ;  or  by  an  entire  change,  during 
the  interval,  of  the  whole  plan  and  object  of  the  house; 
that  a  change  of  title,  during  the  progress  of  the  build- 
ing, by  private  sale,  will  not  affect  mechanics,  with  re- 
ference to  whom  the  building  is  treated  as  if  no  change 
had  occurred;  but,  that  a  sheriff's  sale  will  make  a  new 
commencement,  to  which  any  work  done  after  it  will 
have  relation. 

Where,  however,  the  work  done,  after  the  interval 
of  cessation,  is  not  of  a  substantial  character,  impor- 
tant in  quantity  and  amount,  but  slight  and  trivial ; 
in  such  a  case,  the  question  of  a  double  erection  or 
commencement  could  scarcely  be  raised,  nnder  any 
circumstances.  The  last  w^ork  of  the  interval  was 
very  great,  would  be  considered  extra,  additional  work, 
on  the  same  footing  with  alterations  and  repairs  not 
done,  technically  "for  or  about  the  erection  or  con- 
struction" of  the  building,  and  not  the  subject  of  the 
lien. 

But  this  subject  we  present  more  fully  in  the  suc- 
ceeding chapter,  in  treating  of  the  continuance  of  the 
lien. 

We  may  remark,  here,  in  passing,  that,  in  the  case 
of  several  adjoining  buildings,  and  an  apportionment, 
each  apportioned  part  of  the  debt  may  relate  back  to 
a  different  date  for  the  commencement  of  its  lien, 
unless  a  block  of  houses  is  such  a  unity  that  the  com- 
mencement of  any  one  is  the  commencement  of  all. 


COMMENCEMENT  OF  THE  LIEN.  171 

And  tliis  view  of  the  unity  of  the  block,  though  it  re- 
ceives some  countenance  in  a  decision  of  Gibson,  Ch. 
J.,^  is  yet,  apparently,  in  conflict  with  this  language 
of  the  court  in  Pennock  v.  Hoover, — "  Hence  it  would 
extend  itself  to  all  the  houses  or  buildings  actually 
commenced,  for  which  the  materials  were  furnished 
or  work  done  under  the  same  contract,  and  would  be- 
come a  joint  lien  for  the  whole  amount  of  the  debt, 
commencing  on  each  house  with  the  commencing  of 
the  buildinof  thereof."" 


Chambers  v.  Yarnall,  3  H.  265.  ^  5  R.  313. 


172  CONTINUANCE  OF  THE  LIEN. 


CHAPTER   III. 

OF  THE  CONTINUANCE  OF  THE  LIEN. 

By  the  Acts  of  1803  and  180C,  the  lien  of  the  me- 
chanic and  material  man  continued  for  two  years 
from  tJie  commencement  of  the  huildlng,  without  any 
claim  filed,  or  any  proceeding,  whatever.  It  then 
ceased.  No  further  legislation  altered  this  rule,  until 
the  Act  of  1836. 

By  that  Act  it  was  provided,  that  the  lien  should 
continue  "  until  the  expiration  of  six  months  cfter  the 
iDorh  shall  have  heen  finished  or  7naterials  furnished, 
although  no  claim  shall  have  been  filed  therefor;  but 
such  lien  shall  not  continue  longer  than  the  said  pe- 
riod of  six  months,  unless  a  claim  be  filed,  as  afore- 
said, at  or  before  the  expiration  of  the  same  period." 
This  is  the  provision  which  is  now  in  force. 

It  becomes  an  important  matter  for  inquiry,  under 
the  Act  of  183 G,  by  what  rules  the  period  from  which 
the  six  months  is  to  be  calculated,  is  to  be  ascertained, 
in  each  of  the  numerous  and  varying  cases  that  may 
occur. 

We  may  say,  upon  this  subject,  in  the  outset,  that 
it  has  been  held,  in  several  cases,  to  be  a  question  for 
the  jur}^,  when  the  work  was  finished  and  the  mate- 
rials furnished.^     But,  in  its  directions  to  the  jury,  the 

1  Driesbach  v.  Keller,  2  B.  79.     Holdcn  v.  Winslow,  6  H.  160. 


CONTINUANCE  OF  THE  LIEN.  173 

court  must  be  governed  by  certain  principles;  for 
there  are  aspects  of  the  question  which  are  undoubt- 
edly matters  of  law. 

It  was  settled,  by  late  cases,  that,  when  materials 
were  furnished  for  a  building,  or  work  done,  at  se- 
veral distinct  periods,  upon  distinct  orders,  not  under 
one  continuing  contract,  each  period  gave  rise  to  a  dis- 
tinct debt,  which  stood  by  itself,  with  reference  to  the 
question  of  time  which  we  are  discussing.  The  first 
of  these  cases  was  somewhat  of  a  surprise  to  the  pro- 
fession, and  established  a  rule  in  conflict,  at  least, 
with  the  usages  of  mechanics,  and  the  impressions  of 
many  members  of  the  profession. 

In  that  case,  materials  had  been  furnished  to  a 
dwelling  from  time  to  time,  as  they  were  ordered, 
and  within  six  months  from  the  time  of  furnishing 
the  last  a  claim  was  filed.  The  court  held,  that  every 
item  of  the  bill  not  furnished  within  six  months  had 
lost  its  lien,  and  say:  "but  a  contractor  who  goes  to 
a  lumber  merchant,  and  obtains  lumber,  as  he  needs 
it,  for  the  job  on  hand,  makes  a  new  contract  at  each 
purchase,  and  the  statute  bars  all  of  the  account  more 
than  six  months  old  at  the  filing  of  the  lien."  ^ 

The  same  doctrine  was  again  announced,  by  the 
Supreme  Court,  in  a  subsequent  case.  In  delivering 
the  opinion  of  the  court,  Lewis,  Ch.  J.,  says:  "More 
than  eleven  years  ago,  it  was  decided,  in  the  Common 
Pleas  of  a  neighbouring  county,  that,  where  materials 
are  delivered,  at  different  times,  and  tliere  is  no  evi- 

'  Phillips  V.  Duncan,  12  Leg.  Int.  6. 


174  CONTINUANCE  OF  THE  LIEN. 

dence,  that  they  were  furnished  under  an  entire  con- 
tract, all  the  items  delivered  more  than  six  months 
prior  to  the  filing  of  the  lien  are  barred  by  the  sta- 
tute limiting  secret  mechanic's  liens,  (Gilbert  Hill's 
Estate,  3  Penna.  Law  Jour.,  323.)  A  practice  has 
prevailed,  in  the  interior,  in  accordance  with  this  opi- 
nion, and  that  practice  has,  recently,  received  the 
sanction  of  this  court,  in  an  opinion  delivered  by  Mr. 
Justice  Woodward,  in  Duncan  v.  Phillips.  It  is  well 
settled,  in  the  construction  of  another  statute  of  limi- 
tations, that,  where  the  items  in  an  account  are  all  on 
one  side,  and  there  is  no  evidence  that  they  were  fur- 
nished under  an  entire  contract,  the  items  over  six 
years  old  are  barred.  2  W.  &  S.,  137.  The  differ- 
ence between  the  two  statutes  of  limitations  is,  that,  in 
the  first,  six  months  is  the  period  which  bars,  and,  in 
the  other,  six  years.  This,  certainly,  makes  no  differ- 
ence in  the  principle,  and  does  not  authorize  a  differ- 
ent rule  of  construction.  But  there  is  another  differ- 
ence. The  first  mentioned  statute  is  designed  to 
protect  creditors  from  being  injured  by  secret  liens 
not  placed  on  record.  The  other  operates  in  favour  of 
the  debtor  himself,  who,  of  course,  knows  all  about 
the  extent  of  his  indebtedness,  and,  in  honesty,  is 
bound  to  pay  it.  If  this  difference  between  the  two 
statutes  should  authorize  a  different  rule  of  construc- 
tion, it  should  still  be  more  rigid  against  secret  liens, 
injuriously  affecting  those  creditors  who  have  given 
credit,  in  ignorance  of  their  existence.  The  filing  of 
a  lien  is  done  with  so  little  trouble  or  expense,  and  its 
propriety  is  so  obvious,  in  order  that  others  may  be 


CONTINUANCE  OF  THE  LIEN.  175 

guarded  from  injury,  that  a  creditor,  who  neglects  it, 
has  no  reason  to  complain,  if  he  fails  to  gain  a  pri- 
ority over  others  who  have  complied  with  the  law. 
The  case  of  Johns  v.  Bolton,  2  Jones  339,  was  de- 
cided on  the  effect  of  a  retrospective  statute,  and  does 
not  touch  the  principle  involved  in  this  case.  The 
lien,  in  that  case,  was  created  by  an  act  passed  two 
years  after  the  work  was  done,  and  the  claim  filed. ^ 

To  meet  these  decisions,  the  Act  of  April  14  th, 
1855,  was  passed,  by  which  it  is  enacted,  that,  "when- 
ever the  items  of  a  mechanic's  and  material  man's  bill 
for  work  done,  or  materials  furnished,  continuously, 
towards  the  erection  of  any  new  building,  are,  in  any 
part,  bona  fide,  within  six  months  before  the  filing  of 
the  claim  therefor,  the  lien  shall  be  valid  for  the 
whole;  and  any  lien  heretofore  filed,  within  six 
months  after  furnishing  the  last  item  of  a  continuous 
bill,  shall  be  good  and  valid,  the  same  as  if  the  whole 
bill  were  furnished  within  six  months." 

The  use  of  the  words  "  continuously,"  and  "  conti- 
nuous," in  this  Act,  will  lead  to  questions  hereafter. 
Perhaps  some  aid  in  construing  the  provision  may  be 
gained  from  cases  to  which  we  shall  hereafter  refer, 
in  this  chapter. 

The  decision,  last  referred  to,  expressly  excludes 
from  their  application  the  cases  in  which  the  work  is 
done,  or  the  materials  are  furnished  under  a  continu- 
ing contract.  Thus,  in  Phillips  v.  Duncan,  the  Court 
say:  "Where  materials  are  furnished  under  a  special 

^  O'Ncil  V.  Flanigan,  12  Leg.  Int.  G. 


176  CONTINUANCE  OF  TUE  LIEN. 

contract,  as  for  the  brick  or  lumber  of  a  particular 
house,  the  lien  may  be  entered  within  six  months 
after  the  delivery  of  the  last  item,  for  that  is  the 
completion  of  the  contract."  And  the  same  doctrine 
had,  frequently,  been  announced,  in  prior  cases.^ 

It  is  manifest,  that,  notwithstanding  the  Act  of 
1855,  a  case  may  occur,  where  one  delivery  of  mate- 
rials, or  portion  of  the  work,  is  so  fiir  separated  and 
distinct  from  one  another,  that  the  most  liberal  con- 
struction of  the  word  "continuously"  will  not  be  sa- 
tisfied. The  question  that  arises  here  resembles, 
somewhat,  that  which  arose,  in  the  preceding  chap- 
ter, in  treating  of  the  cases  in  which  there  were  two 
commencements  of  the  building,  or,  where  the  last 
work,  not  being  of  sufficient  dignity  or  importance 
to  be  called  a  new  commencement,  w^as  held  to  be 
mere  addition  or  repair,  and  not  within  the  Acts. 

In  an  early  case,  a  question  arose,  whether  materi- 
als furnished  for  a  vault  were  the  subject  of  a  claim. 
The  court  below,  in  its  charge  to  the  jury,  said:  "The 
vault,  it  appears,  was  a  part  of  the  original  plan  of 
the  building,  and,  if  so,  a  part  of  the  building;  not  an 
addition  after  the  house  was  completed."  In  this 
case,  no  question  of  time  seems  to  have  been  in- 
volved, but  only  that  suggested  in  the  extract  wdiicli 
we  have  given." 


^  Bartlett  v.  Kingan,  7  H.  341.  Yearsley  v.  Flanigan,  10  H. 
489.  Shaffer  v.  Hull,  3  Pa.  L.  J.  321.  Dalton,  Christman  &  Go's. 
Ap.  12  Log.  Int.  ISO. 

2  Barker  v  Conrad,  12  S.  &  Tt.  303.  See,  also,  Presb.  Cb.  v. 
Allison,  10  B.  413. 


CONTINUANCE  OF  THE  LIEN.  177 

In  Johns  v.  Bolton,  it  seems  to  have  been  held  by 
the  court  below,  and  the  judgment  affirmed  by  the 
Supreme  Court,  that,  where  the  work  had  been  com- 
pleted, so  far  as  the  contract  required,  more  than  six 
months  before  the  claim  was  filed,  but,  within  the  six 
months,  extra  w^ork  was  done,  at  the  request  of  the 
defendants,  the  six  months  began  to  run  from  the 
completion  of  the  extra  work.^  It  is  proper,  however, 
to  remark,  that  this  case,  which  was,  at  any  rate,  en- 
titled to  but  little  weight,  was  overruled,  clearly,  by 
that  of  Phillips  v.  Duncan.^ 

In  Holden  v.  AVinslow,  a  question  arose,  as  to  the 
time  of  finishing  a  mill.  The  lien  was  that  of  the 
contractor.  The  work  was  commenced  in  the  spring 
of  1847,  and  continued  for  more  than  a  year,  when 
the  contractor  left  the  work,  as  he  alleged,  for  want 
of  materials,  which  the  defendant  was  to  furnish  j  and 
though  he  returned  once  or  twice,  prior  to  November, 
1849,  he  did  not  complete  the  mill.  In  October,  1849, 
the  defendant  sold  the  mill,  and,  in  November,  the  con- 
tractor commenced  his  work,  and  finished  it  in  De- 
cember, 1849.  There  was  testimony,  that  the  mill  was 
not  considered  finished  in  1848.  The  court  say: — 
"The  question  is,  whether  the  topping  out  done  by  the 
mechanic  was  part  of  the  original  agreement,  and  was 
the  crowning  work  of  his  job,  or  not,  and,  whether  it 
was  done  in  due  time,  without  unreasonable  delay,  by 
consent  of  Winslow;  or,  wliether  it  was  a  distinct  con- 
tract, entered  into  after  his  first  work  was  finished."^ 

But,  in  Yearsley  v.  Flanigan,  a  difierent  view  was 

»  2  J.  339.  '  .Qntr,  p.  173.  "  G  II.  IGU. 

12 


178  CONTINUANCE  OF  THE  LIEN. 

taken  of  the  subject.  The  court  sa}^: — "Where  a 
contract  is  made  with  a  bricklayer,  to  do  all  the  brick 
and  stonework,  about  the  erection  of  a  building,  which 
contract,  by  its  terms,  includes  the  laying  of  the  pave- 
ment, as  it  is  an  entirety,  a  mechanics'  lien  may  be 
filed  within  six  months  from  the  completion  of  the 
work,  even  though  it  may  all  have  been  done,  except 
the  pavement,  more  than  six  months  before  the  lien 
was  filed.  The  work  upon  the  pavement  may  be  in- 
cluded in  the  lien. 

"  If  laying  the  pavement  is  done  under  a  separate 
contract  from  that  of  constructing  the  walls  and  other 
masonry,  and  six  months  is  suffered  to  elapse  from 
the  last  work  upon  the  building  proper,  before  the  lien 
is  filed,  it  is,  then,  too  late,  as  it  cannot  be  connected 
with  the  work  in  laying  the  pavement. 

"Even  where  the  contract  is  entire,  if  the  building 
is  finished,  and  the  contract  treated  as  complete,  by 
the  parties,  and  a  considerable  period  of  time  is  suf- 
fered to  pass,  before  the  pavement  is  laid,  and  inter- 
venincr  ri'2;hts  have  attached,  the  lien  would  not  be  in 
time,  if  not  filed  within  six  months  from  the  date  of 
the  last  work  upon  the  building,  itself,  excluding  the 
pavement."  ^ 

These  are  all  the  cases  of  which  we  are  aware, 
bearing  upon  this  difTicult  subject;  and  we  must  leave 
it  to  the  developments  of  future  decisions. 

The  lien  continues  for  the  six  months  referred  to  in 
the  Act  without  any  claim  filed.     Even  the  filing  of 

'  10  H.  491. 


CONTINUANCE  OF  THE  LIEN.  179 

a  defective  claim,  or  several  of  them,  does  not  disturb 
it.  It  is  not  destroyed  during  the  period  over  which 
it  extends,  without  any  process,  by  an  abortiv^e  eflbrt 
to  give  it  permanence.^ 

We  shall  mention,  in  this  connexion,  a  case  in  which 
it  was  held,  that,  where  materials  were  furnished  on 
the  22nd  day  of  January,  the  claim  had  expired  be- 
fore the  23rd  day  of  July;  and  that  a  claim  then  filed, 
to  continue  the  lien,  was  too  late.^ 

The  next  step,  in  the  progress  of  the  subject,  is  the 
continuance  of  this  lien,  after  the  period  to  which  it 
continues,  without  process,  by  filing  a  claim.  The 
claim  must,  of  course,  be  filed  before  the  lien  of  the 
debt  expires,  under  the  doctrines  just  announced. 

By  the  Act  of  1803,  the  debt  could  not  remain  a 
lien  longer  than  two  years  from  the  commencement 
of  the  building,  unless  an  action  were  instituted,  for 
recovery  thereof,  or  the  claim  filed,  within  six  months 
after  performing  the  work  or  furnishing  the  materials. 
The  Act  of  180G  was  to  the  same  effect. 

It  was  held,  under  these  Acts,  in  the  case  of  Lewis 
V.  Morgan,  that,  upon  a  claim  filed  after  the  six 
months,  the  party  could  not  obtain  a  judgment,  by  suing 
out  a  scire  fo.cuis,  even  though  it  were  sued  out  with- 
in the  two  years.^  The  same  doctrine  was  held  in 
the  subsequent  case  of  Hern  v.  Hopkins,  in  which  the 


'  Bournonvillc  v.  Goodull,  10  B.  V-V-).    Chambers  v.  Yarnull,  .'>  II. 
267.     Pennock  v.  Hoover,  5  R.  318.     Hays  v.  Tryon,  2  M.  208. 
'^  IToop.s  V.  Parsons,  2  M.  241. 
3  11  S.  .til.  234. 


180  CONTINUANCE  OF  THE  LIEN. 

court  say,  that  "  the  claim,  not  being  filed  within  six 
months,  acquired  no  validity  from  the  act  of  filing."  ^ 

The  same  doctrine  was  laid  down,  in  regard  to  the 
institution  of  an  action,  instead  of  filing  the  claim. 
If  done  after  the  six  months,  it  had  no  efficacy  to  con- 
tinue the  lien."  And  in  Williams  v.  Tearney,  where 
the  creditor  had  obtained  a  bond,  with  warrant  of  at- 
torney, and  had  entered  it  for  judgment,  within  the 
two  years,  he  was  held  not  to  have  continued  his  lien, 
thereby,  beyond  the  two  years." 

By  the  Act  of  1836,  the  lien,  as  we  have  seen,  does 
not  continue  longer  than  six  months,  unless  a  claim 
be  filed  before  the  expiration  of  that  period.  No  pro- 
vision is  made  for  its  continuance  in  any  other  manner. 

The  Commissioners,  upon  this  subject,  say :  "  In  this 
section,  the  provision  of  the  first  section  of  the  Act  of 
1806  is,  materially,  altered.  The  original  has  given 
rise  to  great  doubt  and  litigation;  besides  which,  it  is 
believed  to  operate  injuriously  upon  the  owners  of  pro- 
perty and  incumbrances,  by  the  uncertainty  in  which 
it  keeps  them,  for  an  unnecessarily  long  period.  '  The 
commencement  of  the  building,'  from  which  the  two 
years  begin  to  run,  does  not  afford  that  general  rule 
which  is  desirable ;  some  few  buildings  requiring  more 
than  two  years  to  finish,  w^hile  others  are  completed 
in  much  less  time.  Besides,  it  is,  in  most  instances, 
very  difficult  for  third  persons  to  ascertain,  when  the 
particular   work   was   performed,   or   materials   fur- 


1  13  S.  &  R.  2G9.  '  Cornelius  v.  Uhler,  2  Br.  220. 

3  8  S.  &  11.  58. 


CONTINUANCE  OF  THE  LIEN.  181 

nished,  from  winch  the  six  months  run ;  consequently, 
the  risk  of  purchasers  of  real  estate  is  greatly  aug- 
mented. The  limitation  in  the  section  now  sug- 
gested, seems  more  simple  and  less  likely  to  embarrass. 

As  long  as  the  building  is  in  progress,  sufficient  no- 
tice is  given,  and  the  period  of  six  months  after  it  is 
finished  seems  to  give  ample  opportunity  for  the  filing 
of  the  lien." 

The  next  question  that  arises,  is  with  reference  to 
the  duration  of  the  lien  when  continued  by  claim  or 
process. 

Under  the  Acts  of  1803  and  1806,  a  claimant,  by 
instituting  suit,  or  filing  a  claim,  within  the  six  months, 
obtained  a  lien  of  indefinite  duration.-^  Of  the  form  and 
character  of  these  proceedings,  under  the  earlier  Acts, 
we  shall  treat,  hereafter,  when  we  come  to  the  subject 
of  practice. 

By  the  Act  of  March  30th,  1831,  the  lien  was  con- 
fined to  the  period  of  five  years  from  the  time  of  fihng 
the  claim.  This  Act  was  held  not  to  be  retrospective 
in  its  operation,  so  as  to  afiect  the  lien  of  a  claim  filed 
prior  to  its  passage.^ 

The  Act  of  183G,  also,  confined  the  lien  of  a  claim 
to  the  period  of  five  years  from  the  day  of  filing  it; 
but  allowed  it  to  bo  revived  by  scire  facias  in  the 
manner  provided  by  law  in  the  case  of  judgments, 
after  which  the  lien  was  to  continue,  in  like  manner, 
for  another  period  of  five  years,  and  so,  from  one  such 
period  to  another. 

>  Knorr  v.  Elliott,  5  S.  &  11. 49.      ^  Mustin  v.  Vanhook,  3  Wb.  574. 


1 82  CONTINUANCE  OF  THE  LIEN. 

It  was  held,  in  the  case  of  Sweeney  v.  M'Gittigan, 
that  where  more  than  five  years  had  elapsed,  between 
the  time  of  filing  the  claim,  and  the  obtaining  of  a 
verdict  on  a  scire  facias  therein,  the  lien  was  not  lost. 
This  decision  was  in  analogy  to  those  in  reference  to 
judgments.^ 

It  has  been  held,  that,  where  real  estate  is  sold  by 
the  sheriff,  the  lien  of  a  judgment,  which  had  not  ex- 
pired at  the  time  of  the  sfdc,  attached  to  the  proceeds, 
and  continues,  without  further  revival,  until  it  is  paid. 

In  Burt  V.  Kurtz,  a  claim  was  filed,  after  a  sheriff's 
sale.  The  court  say,  in  respect  to  it,  "A  claim  to 
perpetuate  the  lien  of  a  mechanic  or  material  man,  if 
within  time,  in  other  respects,  may,  undoubtedly,  be 
well  filed,  after  a  judicial  sale  of  the  premises.  Where 
the  purchase  money  is  substituted  for  the  land  there 
is  no  reason  why  the  lien  should  not  attach  itself  to 
it,  as  it  would  to  the  land  in  the  hands  of  the  pur- 
chaser were  it  liable  to  the  charge."  ^ 

And,  in  a  case  which  we  find  mentioned,  as  decided 
in  the  Common  Pleas  of  Franklin  county,  in  1819,  it 
appears  to  have  been  held,  under  the  earlier  Acts, 
that  a  lien  which  had  not  expired,  at  the  time  of  the 
Sherifi^'s  sale,  might  expire,  for  want  of  a  claim,  after 
the  sale,  as  against  the  proceeds.^ 

These  decisions  seem  to  make  a  difference  between 
the  lien  of  a  judgment  and  a  mechanic,  in  this  respect. 
But  in  a  much  later  opinion  the  court  seems  to  take 

1  8  H.  320.  ^  5  R.  248. 

2  Sharpknack  v.  Wilson,  Wb.  Dig.  5  Ed.  pi.  127. 


CONTINUANCE  OF  THE  LIEN.  183 

a  different  view.  In  that  case,  it  says :  "  The  same 
principles  apply  where  the  property  is  sold  by  the 
Sheriff  before  the  expiration  of  the  time  allowed  for 
the  lien  to  be  filed.  The  claim  may,  then,  be  made 
upon  the  fund  produced  by  the  sale  in  like  manner 
as  though  the  lien  had  been  entered  of  record."  ^ 

This  doctrine  seems  to  harmonize  better  with  that 
of  the  cases  to  w^iich  we  shall  hereafter  refer,  which 
seem  to  make  all  proceedings  after  a  sale  of  the  pre- 
mises a  nullity,  and  refuse  to  allow  a  claimant  to  pro- 
ceed even  for  costs. 

By  the  24th  section  of  the  Act  of  1836,  it  is  pro- 
vided that  the  claim  may  be  "revived  by  scire  facias, 
in  the  manner  provided  by  law  in  the  case  of  judg- 
ments, in  which  case,  such  lien  shall  continue,  in  like 
manner,  for  another  period  of  five  years,  and  so,  from 
one  period  to  another,  unless  such  lien  be  satisfied,  or 
the  same  be  extinguished  by  a  sheriff's  sale,  or  other- 
wise, according  to  law." 

^  Yearsley  v.  Flanigan,  10  II.  491. 


184  rOSlTION  AND  PraORITY  OF  THE  LIEN. 


CHAPTER   IV. 

OF   THE    POSITION   AND   PRIORITY  OF   THE    LIEN. 

The  mecliaiiic's  lien  is,  of  course,  prior  to  all 
liens  originating  after  the  commencement  of  the  build- 
ing. But  liens  which  have  attached  before  the  com- 
mencement of  the  building  take  precedence  of  them.^ 

In  a  case  of  Lyons  v.  M'Gaffy  a  mechanic's  claim 
■was  held  to  have  precedence  over  a  judgment  for  pur- 
chase money,  which  was  not  entered  up  till  ten  days 
after  the  deed  was  delivered.  In  this  case,  the  work 
was  done  while  the  owner  had  a  merely  equitable  title, 
and  the  lien  attached  to  the  equity.  When  the  le- 
gal estate  was  acquired,  the  lien  bound  it,  also. 
What  would  have  been  the  case,  if  the  purchase-mo- 
ney had  been  secured  by  a  mortgage,  or  by  a  judgment 
entered  up  at  once,  is  not  stated.  The  decision  ap- 
pears to  have  been  based  upon  the  fact,  that  when  the 
equity  had  merged  in  the  legal  estate,  the  mechanic's 
lien  was  the  first  to  take  effect.^ 

No  part  of  the  record  of  a  claim,  though  it  be  pur- 
sued to  judgment,  specifies  the  time  of  the  commence- 


^  Loib  V.  Bean,  1  Asb.  207.    Lysle  v.  Ducomb,  5  Bin.  585.    Mit- 
cbell  V.  Evans,  2  Br.  329.     Vandcrveer's  Case,  2  Br.  304. 
'  4  B.  126. 


POSITION  AND  PRIORITY  OF  THE  LIEN.  185 

ment  of  the  building.  This  is,  always,  a  subject  of 
proof,  when  the  distribution  of  proceeds  is  made. 
And  it  renders  the  intervention  of  an  auditor  neces- 
sary, in  most  cases. 

It  follows,  of  course,  from  the  fact  that  all  liens 
upon  a  building  have  relation  back  to  the  same  time, 
that,  if  the  fund  is  insufficient  to  pay  them,  in  full, 
they  are  paid  pro  rata.  No  one  claim  has  preference 
over  another.  One  who  aids  in  the  finishing  work  is 
secured  equally,  and,  in  the  same  manner,  wdth  one 
who  builds  the  foundation. 

It  will  be  remembered,  that,  by  the  loth  section 
of  the  Act  of  183G,  requiring,  in  all  cases  where  a 
claim  for  materials  is  filed  against  two  or  more  build- 
ings, owned  by  the  same  person,  a  designation  of  the 
amount  due  from  each  building,  it  is  provided,  that, 
if  he  fiiil  to  do  so,  "such  claim  shall  be  postponed  to 
other  lien  creditors." 

In  the  case  of  Thomas  v.  James,  it  was  held,  that 
this  postponement  was  not  only  to  other  mechanic's 
liens,  but  to  all  subsequent  liens,  wdiatever.^ 

There  is,  perhaps,  a  question,  whether  a  judgment 
upon  a  scire  facias  upon  a  claim  deficient  in  this  re- 
spect, does  not  cure  the  defect.  This  point  has  been 
suggested,  in  one  of  the  cases,  but  the  court  declined 
to  decide  it,  merely  saying,  "Whether  this  provision 
will  reach  behind  a  judgment  recovered,  to  postpone 
the  lien  on  which  it  is  founded,  it  is  not  now  neces- 
sary to  decide."* 

1  7  W.  &  S.  382.  •'  Lauinan'd  Ap.  8  B.  477. 


18G  POSITION  AND  rinORITY  OF  THE    LIEN. 

It  was  held,  in  Lauck's  Appeal,  that  the  provisions 
of  the  Act  which  exempts  property  to  the  value  of 
three  hundred  dollars,  from  execution,  are  not  intend- 
ed to  affect  the  liens  of  mechanics  and  material  men. 
Lewis,  Ch.  J.,  in  delivering  the  opinion  of  the  court, 
says :  ''  The  three  hundred  dollars'  worth  of  property 
exempt,  under  the  law  of  Dth  of  April,  1849,  is  ex- 
pressed to  be, '  in  lieu  of  the  property  then  exempt,  by 
law,  from  levy  and  sale,  on  execution,  on  any  judg- 
ment obtained  upon  a  contract  and  distress  for  rent.' 
This  language,  evidently,  applies  only  to  judgments 
or  distresses  for  rent,  on  which  property  was  exempt 
from  levy,  as  the  law  stood  before  the  Act  of  1849; 
but  no  exemption  existed,  at  that  time,  against  a  me- 
chanic's lien,  as  it  is  confined  in  its  execution  to  the 
property  for  the  erection  of  which  the  materials  were 
furnished  or  the  work  was  done.  The  Act  of  1849 
applies  to  judgments  obtained  on  contract.  By  this 
is,  undoubtedly,  meant  judgments  on  contract  of  the 
person  against  whom  they  may  be  executed; — that  is, 
judgments  against  the  persons  of  the  parties,  which 
may  be  levied  on  the  goods  or  lands  of  the  debtor,  ge- 
nerally^; and  not  judgments  de  terrls,  against  specific 
real  estate,  which  may  be  executed  against  such  estate, 
without  any  contract,  whatever,  between  the  plain- 
tiff and  the  owner.  It  is  our  opinion,  from  the  lan- 
guage of  the  Act  of  1849,  as  well  as  from  the  favour 
which  the  law  extends  to  mechanic's  liens,  that  it  was 
not  the  intention  of  that  Act  to  enable  debtors  to  hold 
possession  of  buildings,  or  to  take  the  proceeds  of  them, 
without  paying  the  mechanics  and  material  men  for 


POSITION  AND  PEIORITT  OF  THE  LIEN".  187 

the  materials  furnished    and  work  done  in   erectina; 
them."^ 

It  was  decided,  in  an  early  case,  that  the  liens  of 
mechanics,  like  judgments,  were  discharged,  by  a 
sheriff's  sale.  Nor  are  they  saved  from  this  result  by 
the  Act  of  1830.  A  sherifi"s  vendee  takes  discharged 
of  them,  and  they  are  payable  out  of  the  proceeds.'-^ 

1  12  H.  428.  '  Werth  v.  Wertb,  2  R.  151. 


188  DISCHARGE  OF  THE  LIEN. 


CHAPTER  V. 

OF  THE  DISCHARGE  OF    TUE  LIEN. 

A  PAYMENT  of  the  debt  to  the  mechanic  or  material 
mail  will,  of  course,  satisfy  the  lien.  But  a  payment 
by  the  owner  to  the  contractor  will  have  no  such  effect 
upon  the  claims  of  those  employed  by  the  latter.^ 

A  release  given  by  the  mechanic  or  material  man 
to  the  owner  or  contractor,  of  course,  extinguishes 
the  lien,  if  it  be  duly  delivered. 

But,  where  a  release  of  the  owner  and  the  building 
was  delivered  to  the  contractor,  by  a  mechanic  em- 
ployed by  the  latter,  but  was  never  delivered  to  the 
owner,  because  he  had  failed  to  pay  the  proper  con- 
sideration for  it,  it  was  held  not  to  avail  him." 

We  have,  already,  referred  to  the  cases  which  show, 
that  the  lien  will  exist,  notwithstanding  a  special  agree- 
ment with  the  owner,  or  the  taking  of  other  security 
or  evidence  of  the  debt,  before  the  lien  attaches.  The 
question  now  to  be  considered  is  the  effect  of  such 
acts,  subsequently  to  the  commencement  of  the  lien. 

Taking  another  security  or  evidence  of  indebtedness 
is,  in  general,  no  satisfaction  of  the  lien.  It  is  merely 
cumulative. 

1  Wetherill  v.  Harbert,  2  B.  348.  ^  See  id. 


DISCHARGE  OF  TEE  LIEX.  189 

Thus  accepting  a  note  for  the  amount  of  the  claim, 
is  not  a  satisfaction  of  it.^ 

Of  course,  we  must  except  from  this  general  rule, 
the  case  in  which  the  creditor,  expressly,  takes  it  as 
such.  For  instance,  it  has  been  held,  that  where  he 
gives  a  receipt,  at  the  foot  of  his  bill,  for  the  note,  as 
"in  full  of  the  above  bill,"  there  is  evidence  for  a  jury 
of  its  being  taken  in  satisfaction  of  the  debt,  and  there- 
fore, in  discharge  of  the  lien.^ 

In  Crean  v.  M'Fee,  it  was  held,  that  the  taking  and 
entering  of  a  judgment  bond,  after  the  filing  of  a  claim, 
was  not  a  satisfaction  of  it.  The  Court  say: — "In 
Thompson's  case,  2  Browne's  Rep.  297,  the  precise 
question,  now  raised,  was  decided,  in  favour  of  the 
mechanic's  claim.  Judge  Hemphill,  then  President 
of  this  court,  in  an  opinion  very  carefully  2)repared, 
rested  the  decision  on  the  doctrine  of  merger  or  exihi- 
guisliment  of  an  inferior  security,  by  the  acceptance  of 
a  superior  one;  and,  viewed  in  this  aspect,  thought 
the  judgment  could  not  be  considered  of  a  higher  rank 
than  the  claim  filed.  \Yere  we  restricted  to  the  appli- 
cation of  this  doctrine,  we  should,  probablj^,  arrive  at 
a  different  conclusion.  But  we  think  the  proper  in- 
terpretation of  the  mechanic's  lien  Act  of  180G,  brings 
to  the  claimant's  aid  another  principle  of  law,  strictly 
apposite,  on  the  facts  of  the  case,  and  equally  avail- 
able, to  sustain  the  Auditor's  report. 

"  "We  regard  the  individual  furnishing  materials,  or 


^  Kinsley  v.  Buchanan,  5  W.  118.     Johns  v.  Bolton,  2  J.  339. 
*  Jones  V.  Shawau,  4  W.  &  S.  257. 


100  DISCHARGE  OF  THE  LIEN. 

doing  ^york,  in  the  construction  of  a  building,,  and,  after- 
wards, filing  his  claim,  so  as  to  acquire  the  benefits 
of  the  Act  of  Assembly,  to  be  entitled  to  several  con- 
current remedies  to  enforce  his  debt.  The  lien  under 
the  Act,  is  but  a  collateral  security,  which  may  be 
made  efficacious,  by  suing  out  a  scire  facias,  or  by  re- 
sort to  a  personal  action,  at  the  option  of  the  claimant, 
by  express  direction  of  the  supplementary  Act  of  1808. 
The  claimant  has,  also,  a  concurrent  remedy,  by  a 
personal  action,  when,  as  here,  the  owner  of  the  build- 
ing was  the  contractor  of  the  debt;  and  should  the 
building  be  sold  within  two  years  from  its  commence- 
ment, the  debt  would,  notwithstanding  the  prosecu- 
tion of  the  personal  action  to  judgment,  retain  its  pre- 
ference, secured  by  the  Act  over  suhsequent  liens.  The 
taking  of  the  bond,  &c.,  and  entry  of  judgment  thereon, 
was  a  procedure  not  differing,  in  its  legal  incidents, 
from  a  mere  personal  action;  although  in  Williams 
V.  Tearney,  8  S.  &  R.  56,  it  was  held  not  sufficient  to 
fulfil  the  requisition  of  the  Act,  in  respect  to  the  in- 
stitution of  an  action,  {where  no  claim  is  filed,)  within 
six  months  from  the  furnishing  of  materials,  or  the 
performing  of  work."^ 

Where,  however,  time  is  given  to  the  contractor, 
the  principal  debtor,  by  the  mechanic  or  material  man, 
it  seems,  that  the  building,  which  is  the  surety,  is 
discharged.  AVe  give  the  opinion  of  the  court  in  the 
late  case  of  Hill  v.  Witmer,  upon  this  subject,  at  length, 


1  2  M.  214.     See,  however,  Lewis  v.  Morgan,  11  S.  &  R.  237, 
Williams  v.  Tearney,  8  S.  &  R.  59. 


DISCnAEGE  OF  THE  LIEN.  191 

because  it  is  the  only  one  of  which  we  have  knowledge, 
in  which  the  point  is  discussed. 

"  This  is  a  scire  facias  on  a  mechanic's  claim.  The 
executor  of  the  owner  pleads,  that  Gilbert  Low,  the 
contractor,  made  a  contract  with  the  decedent  to  erect 
two  houses,  within  nine  months  from  August  3rd, 
1853.  The  plaintiff  on  the  1st  of  February,  1854,  after 
the  materials  which  are  the  subject  of  this  claim  were 
furnished,  accepted  Low's  note,  payable  in  ninety  days 
from  the  1st  of  February,  1854,  for  the  price  of  the 
materials,  and  agreed,  in  consideration  of  the  delivery 
of  the  said  note,  to  extend  and  give  time  to  said  Low, 
for  the  payment  of  said  price,  for  ninety  days. 

"  The  defendant,  before  the  note  fell  due,  paid  Low 
the  full  amount  of  the  contract  price.  There  is  another 
plea,  setting  forth  the  additional  fact,  that  defendant 
had  no  notice  of  the  lien  when  he  paid  the  contractor. 

"  The  owner  of  a  building,  or  rather  the  building 
itself,  when  erected  by  contract,  stands,  very  much, 
in  the  relation  of  a  surety  for  the  contractor.  We 
are  now  to  decide  whether  those  equitable  principles 
which  have  been  adopted  in  regard  to  principal  and 
surety,  shall  be  applied  to  this  relation  of  contractor 
and  owner.  It  appears  settled,  in  England,  that,  even 
a  covenant  not  to  sue  the  principal,  with  an  express 
reservation  of  all  remedies  against  the  surety,  does 
not  discharge  the  latter;  for  the  equity  of  the  surety 
is  not  affected.  Upon  payment  of  the  debt,  hy  the 
surety  he  has  a  riglit  to  immediate  recourse  against 
the  principal,  by  the  very  terms  of  the  principal's 
agreement  with  the  creditor. 


192  DISCHARGE  OF  THE  LIEN. 

*^  Whether  this  is  so  in  this  state,  has  never  been 
expressly  decided. 

"As  far  as  appears  on  the  pleadings,  there  was  no 
reservation ;  and  if  the  contractor  and  owner  do,  reallj^, 
stand  in  the  relation  of  principal  and  surety,  we  are 
bound  to  apply  to  it  the  familiar  rule,  that  time  given, 
by  a  Ijinding  agreement,  to  the  principal,  without  the 
consent  of  the  surety,  discharges  the  latter.  The 
owner  had  a  right,  as  soon  as  the  work  was  done,  to 
pay  the  mechanic,  and  either  deduct  the  amount  from 
the  contract  price,  or,  if  he  had  already  paid,  proceed, 
at  once,  against  the  contractor,  to  secure  his  reimburse- 
ment. The  act  of  the  creditor,  the  mechanic,  or  ma- 
terial man,  in  giving  time  to  the  contractor,  impaired 
this  right.  lie  could  not  proceed,  until  the  time  ex- 
pired, and  this  delay  might  be  the  cause  of  final  failure 
to  recover. 

"Let  us  examine,  whether  there  is  anything  in  the 
decided  cases  which  ought  to  prevent  us  from  adopt- 
ing a  principle  which  seems  required  by  analogy,  and 
is,  obviously,  so  just  and  reasonable. 

"In  Kinsley  v.  Buchanan  (5  W.  118,)  in  which  it 
was  held,  *  that  an  acceptance  of  a  note  from  the  con- 
tractor is  not  a  relinquishment  of  the  mechanics'  lien,' 
the  note  was  payable  on  demand,  and  no  time  was 
given.  Johns  v.  Bolton  (12  Penna.  State  Rep.,  340,) 
is  a  case  which,  so  far  as  concerns  this  point,  is  not 
fully  reported.  It  is  stated,  that  before  the  lien  was 
filed,  the  defendants,  (that  is,  perhaps,  the  contractors,) 
gave  to  the  plaintiffs  a  note,  on  account  of  the  work 
done,  which  was  dishonoured,  and  taken  up  by  the 


DISCHARGE  OF  THE  LIEN.  193 

plaintiffs.  There  is  no  argument  on  this  point,  and 
the  court  take  no  notice  of  it.  They  reverse,  for  cer- 
tain errors,  and  add,  generally,  that  the  other  errors 
not  abandoned  are  sustained.  It  is  probable  that  this 
is  one  of  those  abandoned.  It  is  evident,  however, 
that  there  is  nothing,  in  the  case,  to  show  time  given 
by  a  binding  agreement.  Where  a  creditor  accepts 
the  debtor's  note  for  a  precedent  debt,  payable  at  a 
future  day,  it  'w,  prima  facie,  only  collateral;  and  if  he 
does  not  part  with  the  note,  or  produces  it  on  the 
trial,  he  may  sue  an  hour  afterwards,  Weakley  v.  Bell, 
(9  W.  283.)  In  the  case  before  us,  there  is  an  ex- 
press averment  of  such  an  agreement,  to  give  time  in 
consideration  of  giving  the  note,  which  the  demurrer 
admits. — Judgment  for  defendant.^ 

Points  of  some  interest  are  presented,  in  the  cases, 
connected  with  the  doctrines  of  set-off,  and  the  appro- 
priation of  payments. 

It  appears,  that  a  debt  due  to  the  contractor,  by  the 
claimant,  may  be  setoff.^ 

In  Harker  v.  Conrad,  it  was  held,  that,  where  a 
material  man  had  separate  liens,  for  materials  fur- 
nished to  two  several  houses,  and  received  a  payment 
from  the  debtor,  without  any  actual  appropriation  of 
it;  and  then,  allowed  one  of  his  liens  to  expire,  he 
could  not,  subsequently,  appropriate  the  payment  to 
the  lien  that  had  expired,  to  the  prejudice  of  a  pur- 
chaser of  the  premises  bound  by  the  other  lien. 

The  court  say: — "The  case,  then,  was  just  this; 

.      '  13  Log.  Int.  G9.  »  Gubcll  v.  Perry,  1  11.  181. 

13 


194  DISCHARGE  OF  THE  LIEN. 

the  plaintiffs  had  separate  demands,  in  respect  of  dif- 
ferent houses,  and  hens  on  those  houses,  respectively, 
which  were  equally  permanent,  or,  what  is  the  same 
thing,  the  means  of  making  them  such.  A  payment 
was  made,  without  actual  appropriation,  by  either 
party,  and  the  plaintiffs,  after  having  suffered  one  of 
their  liens  to  expire,  claim  a  right,  at  the  trial,  to  ap- 
propriate the  payment  to  the  discharge  of  their  demand, 
in  respect  of  which  their  lien  had  so  expired;  and 
this,  against  a  person  who  had  become  a  purchaser, 
without  notice,  of  the  property,  on  which,  according 
to  this  mode  of  appropriation,  there  would  be  a  sub- 
sisting incumbrance.  Although,  as  between  the  im- 
mediate parties,  the  creditor  has  a  right  to  appropriate, 
where  the  debtor  has  failed  to  do  so;  yet  this  right  must 
be  exercised  within,  at  the  furthest,  a  reasonable  time 
after  the  payment,  and,  by  the  performance  of  some 
act,  which  indicates  an  intention  to  appropriate.  It 
is  too  late  to  attempt  it  at  the  trial;  and,  were  it 
otherwise,  there  would,  in  the  absence  of  an  actual 
appropriation  by  the  debtor,  be  no  rule  on  the  sub- 
ject, but  the  will  of  the  creditor,  which  would,  in  all 
cases,  be  decisive.  But  such  is  not  the  fact.  In  de- 
fault of  actual  appropriation,  the  matter  is  to  be  de- 
termined by  rules  and  circumstances  of  equity.  The 
debtor  has  a  right  to  make  the  application,  in  the  first 
instance,  and  failing  to  exercise  it,  the  same  right  de- 
volves on  the  creditor:  but,  where  neither  has  exer- 
cised it,  the  law,  nevertheless,  presumes,  in  ordinary 
cases,  that  the  debtor  intended  to  pay,  in  the  way 
which,  at  the  time,  was  most  to  his  advantage.     Thus, 


DISCHARGE  OF  THE  LIEN".  195 

if  it  were  peculiarly  the  interest  of  the  party,  to  have 
the  money  received  in  extinguishment  of  a  particular 
demand,  the  law  intends,  that  he  paid  it  in  extinguish- 
ment of  such  demand,  and,  that  the  omission  to  de- 
clare his  intention  was  accidental.  Such  intendment 
is  reasonable  and  natural,  and  one  which  will,  in  most 
cases,  accord  with  what  was,  actually,  the  fact :  it  is, 
therefore,  equivalent  to  an  exercise  of  the  party's  right, 
by  acts,  or  an  express  declaration  of  intention.  Where, 
however,  the  interest  of  the  debtor  could  not  be  pro- 
moted by  any  particular  appropriation,  there  is  no 
ground  for  a  presumption  of  any  intention,  on  his  part, 
and  the  law,  then,  raises  a  presumption,  for  the  same 
reason,  that  the  payment  was  actually  received,  in  the 
way  that  was  most  to  the  advantage  of  the  creditor. 
I  think  these  principles,  as  furnishing  general  rules, 
may  fairly  be  extracted  from  the  cases.  Then,  ac- 
cording to  this,  if  the  controversy  was  between  the 
original  parties,  it  would  admit  of  a  doubt,  whether 
the  payment  ought  not  to  be  considered  as  having 
been  made  on  the  foot  of  the  account,  for  materials 
furnished  to  the  houses  in  Fourth  street;  because,  by 
having  it  so  applied,  the  plaintiffs  would  secure  their 
whole  demand,  without  the  expense  and  trouble  of 
filing  their  lien  against  those  houses :  whilst  Ilarker 
and  Thorn  would  not  have  been  benefited,  by  having 
it  applied  to  either  demand,  in  particular.  But  the 
introduction  of  a  purchaser,  without  notice,  into  the 
case,  leads  to  an  opposite  result.  He  stands  in  suj^e- 
rior  equity  to  Ilarker  and  Thorn,  who  were  bound  in 
conscience,  to  protect  the  title  which  they  liad  con- 


196  DISCHARGE  OF  THE  LIEN. 

veyed  to  liim,  Jind  wlio,  there  is,  therefore,  as  much 
reason  to  presume,  intended  to  make  this  payment, 
for  his  benefit,  as  there  would  be  to  presume,  that 
they  intended  to  apply  it  in  the  way  most  condu- 
cive to  their  own  interest,  if  a  particular  application 
of  it  could  have  produced  an  equal  benefit  to  them- 
selves. The  law  ought  to  presume,  and  does  presume, 
that  every  man  is  governed  by  the  dictates  of  con- 
science, and  that  he  will  do  what  honesty  requires  of 
him,  even  though  it  be  against  his  interest.  Such  a 
presumption  can  prejudice  no  one,  nor  does  it  injure 
the  plaintiffs  here.  They  were  bound,  by  every  con- 
sideration of  equity,  to  perpetuate  their  lien  on  the 
houses  in  Fourth  street,  and  thus,  while  they  secured 
themselves,  to  cast  the  burden  on  those  whose  duty 
it  was  to  bear  it.  Having  failed  to  do  so,  the  pur- 
chaser stands  in  superior  equity,  also,  to  them;  and 
they  must,  therefore,  bear  a  loss  which  arose  entirely 
from  their  own  neglect,  and  which  it  was  their  duty 
to  prevent."^ 

In  a  case  arising  with  respect  to  the  same  parties,  it 
was  held,  that  where  an  owner,  after  being  supplied 
with  lumber  to  erect  a  building,  became  the  holder 
of  a  note  of  the  lumber  man,  payable  in  lumber,  the 
note  extinguished  the  debt,  pro  tanto,  and  prevented 
the  lumber  man  from  filing  a  claim  for  more  than  the 
balance  due  to  him  from  the  building;  and,  that  the 
owner  and  the  lumber  man  could  not,  afterwards,  by 
agreement,  apply  the  note  to  the  extinguishment  of  a 

^  12  S.  &  R.  301. 


DISCHARGE  OF  THE  LIEN.  197 

debt  for  lumber  subsequently  supplied  to  another 
building,  against  which  no  lien  had  been  filed,  to  the 
prejudice  of  a  purchaser  of  the  first  building.^ 

A  mechanic's  lien  may  be  discharged  by  circum- 
stances amounting  to  an  estoppel. 

Thus,  a  judgment  against  the  claimant,  in  a  per- 
sonal action,  for  the  same  debt  for  which  a  claim  is 
filed,  will  bar  a  sci?'e  facias  on  the  claim.  It  is  a  re- 
cord estoppel.^ 

So  it  may  be  lost  by  an  estoppel  in  pays.  Where 
a  person  having  such  a  lien  stands  by  at  a  public  sale, 
and  encourages  a  person  to  buy  at  a  full  value,  with- 
out disclosing  his  right,  his  claim  may  be  barred  or,  at 
least,  postponed. 

A  mere  omission,  however,  to  proclaim  his  lien  will 
not  have  that  effect.^ 

Of  course,  a  sheriff's  sale  discharges  the  lien,  as 
against  the  realty.  The  claimant  is  referred  to  the 
proceeds,  but  the  purchaser  takes  the  premises  free  of 
the  incumbrance. 

In  a  late  case,  not  yet  reported,  it  has  been  held, 
that  a  destruction  of  the  building  for  which  the  work 
has  been  done,  or  the  materials  furnished,  by  fire,  or 
otherwise,  discharges  the  lien. 

Lewis,  Ch.  J.,  in  delivering  the  opinion  of  the  court, 
says :  "  The  equity  of  a  mechanic's  lien  upon  a  build- 
ing is  founded  upon  the  labour  and  materials  furnished 
by  him,  in  constructing  it.      That  the  land  on  which 


1  Hopkins  V.  Conrad,  2  R.  316.  '  Whclan  v.  Hill,  2  Wh.  118. 

*  Kline  v.  Lewis,  1  Ash.  31. 


198  DISCHARGE  OF  THE  LIEN. 

the  building  stands  goes  with  the  building,  in  case  of 
a  sale,  is  the  result  of  necessity,  because  the  building 
cannot  be  enjoyed  without  it.  The  legislative  pro- 
visions are  founded  on  that  necessity,  and  do  not 
change  the  character  of  the  lien,  in  this  respect.  It 
is  not  founded  on  any  contract  with  the  owner  of  the 
land.  It  is  not,  necessarily,  one  of  his  debts.  It  may 
be  created  by  a  contractor,  who  has  already  received 
from  the  owner  full  compensation  for  furnishing  the 
materials  and  erecting  the  building.  Attaching  itself 
to  the  building,  and  depending  upon  it  for  existence, 
the  lien  must,  necessarily,  share  the  fate  of  the  build- 
ing. No  amount  of  labour  of  materials  furnished, 
for  the  erection  of  a  building,  would  create  a  lien,  if  no 
building  should  be  erected.  So,  if  the  building,  after 
erection,  should  be  destroyed  by  accident,  before  the 
ground  on  which  it  stood,  passed  to  a  purchaser,  the  lien 
would  be  gone.  The  reason  for  binding  the  land  is 
gone,  with  the  building.  Any  other  construction 
w^ould  defeat  one  of  the  objects  of  the  law,  which  was, 
to  promote  the  improvement  of  the  country,  by  en- 
couraging mechanics  and  material  men  to  furnish  la- 
bour and  materials  in  erecting  buildings.  But  if  the 
lien  continues  on  the  land  after  the  building  is  de- 
stroyed, how  are  those  who  erect  the  new  buildings 
on  the  premises  to  be  protected?  Their  equity 
against  it  is  undoubtedly  superior  to  the  claims 
upon  the  building  that  was  destroj'cd.  And,  yet, 
the  latter,  if  they  exist  at  all,  must  be  preferred  to 
the  former.  Under  such  a  rule  all  further  im- 
provement on  the  premises  might  be  prevented.      In 


DISCHARGE  OF  THE  LIEN.  199 

this  case,  tlie  court  held,  that  a  mechanic's  hen 
against  a  former  building  was  good  against  one 
erected  afterwards,  although,  neither  the  labour  nor 
materials  on  which  the  claim  is  founded  were  per- 
formed or  furnished  for  the  building  thus  charged. 
In-  this  we  think  there  was  error.  It  follows  from 
what  has  already  been  said,  that  the  equity  of  the 
claim  does  not  extend  to  the  ground,  except  when  it 
becomes  necessary  to  the  enjoyment  of  the  building. 
The  words  of  the  statute  are  in  accordance  with  this 
principle.  They  give  the  lien  upon  the  'building' 
alone  in  the  first  place,  and,  then,  by  a  subsequent 
erection,  this  lien  is  declared  to  'extend  to  the  ground 
covered  by  such  buildmg,  and  to  so  much  other  ground 
immediately  adjacent  thereto,  and  belonging  in  like 
manner  to  the  owner  of  such  building,  as  may  be  ne- 
cessary for  the  ordinary  and  useful  purposes  of 
such  building'  The  words  ^such  building'  refer,  ex- 
clusively, to  the  building  for  which  the  materials  were 
furnished,  and  work  done,  and  to  no  other.  When 
the  ground  ceases  to  be  'covered'  by  'such  build- 
ing,' before  the  lien  is  filed,  the  lien  ceases  as  a 
matter  of  course."^ 

In  another  late  case,  however,  it  seems  to  have  held 
that  it  was  no  defence  against  the  lien  to  show,  that 
the  building  was  taken  down  on  account  of  its  impro- 
per construction.^ 


1  Third  Ass.  Ref.  Presb.  Ch.  v.  Stetlcr,  op.  delivered  March  22, 
185G.     la  Leg.  Int.  IIG. 
■'  Odd  Fellows'  Hall  v.  Masser,  12  H.  510. 


PAiiT  y. 


OF  THE  JURISDICTION  OF  COURTS  AND  PRACTICE  UNDER 
THE  LAW. 


CHAPTER   I, 


GENERAL    REMARKS   UPON   THE   PROCEEDING. 

It  has  been  settled,  by  many  decisions,  that  the 
claim  of  the  mechanic  and  material  man,  and  the  pro- 
ceedings thereupon  are,  simply,  in  rem.  They  are  so 
entirely  so,  that,  if  the  premises  affected  by  the  claim 
be  discharged,  in  any  manner,  the  proceedings  termi- 
nate. They  cannot  continue,  even  for  costs.  If  they 
do  proceed,  with  or  without  a  discharge  of  the  land, 
the  judgment  is  not  one  of  the  ordinary  character,  but 
a  special  one  against  the  premises,  authorizing  no  pro- 
cess in  personam,  or  against  other  property.^ 

We  shall  refer,  hereafter,  to  the  personal  remedy  of 
the  creditor  against  the  one  with  whom  the  contract 
to  do  the  work  or  furnish  materials  was  made.  If 
this  person  be  a  contractor,  and  not  the  owner,  the 


1  Ilolden  V.  Winslow,  7  H.  457.     Matlack  v.  Deal,  1  M.  254. 
Anschutz  V.  M'Clelland,  5  W.  487. 


GENERAL  REMARKS  UPON  THE  PROCEEDING.         201 

latter  is  under  no  personal  liability  whatever.      He 
simply  subjects  his  house  to  the  burden. 

We  have,  heretofore,  taken  occasion  to  notice  the 
looseness  allowed  in  the  proceedings  upon  these 
claims,  the  great  indulgence  shown  to  the  mechanic, 
and 'the  inconsistencies  of  the  decisions.  These  will 
appear,  manifestly,  as  we  proceed.^ 

^  See  ante,  p.  37,  et  seq. 


202  JURISDICTION  OF  COURTS. 


CHAPTER  II. 

OF   THE   JURISDICTION   OF   COURTS. 

Under  the  11th  section  of  the  Act  of  183G,  the 
claim  must  be  filed  in  the  court  of  "the  county  in 
^Yhicll  the  building  may  be  situate."  No  provision 
appears  to  be  made  for  a  case  in  which  the  premises 
lie  partly  in  one  county  and  partly  in  another. 

The  jurisdiction  of  courts,  within  the  proper  county, 
is  generally  determined  by  the  amount  in  controversy, 
as  in  other  cases. 

In  most  of  the  counties  of  the  state,  the  Court  of 
Common  Pleas  is  the  proper  tribunal,  to  take  cogni- 
zance of  these  proceedings. 

Prior  to  the  Act  which  we  are  about  to  mention, 
the  District  Court  for  the  city  and  county  of  Phila- 
delphia had  the  jurisdiction  in  all  cases  where  the 
lien  filed  was  for  more  than  one  hundred  dollars,  and 
the  Court  of  Common  Pleas,  where  the  claim  was  for 
less  than  that  amount.  But,  by  an  Act  of  May  8th, 
1854,  the  Court  of  Common  Pleas  has,  now,  concurrent 
jurisdiction  with  the  District  Court,  in  all  cases  in 
which  the  same  does  not  exceed  five  hundred  dol- 
lars. 

Where  the  claim  gives  jurisdiction  from  its  amount, 
the  fact  that  it  is  apportioned  for  sums  less  than  that 


JURISDICTION  OF  COURTS.  203 

necessary  to  give  such  jurisdiction,  so  that  the  writs 
o^  scire  facias  against  each  house  will,  also,  be  for  less, 
does  not  oust  the  jurisdiction. 

Indeed,  in  one  case,  where  the  entire  sum  was  over 
one  hundred  dollars,  the  court  having  jurisdiction  over 
that  sum  was  held  to  have  exclusive  cognizance.^ 

To  prevent  any  doubt  upon  this  subject,  an  Act  of 
April  10th,  1848,  gave  the  District  Courts  of  Phila- 
delphia, Lancaster  and  Allegheny  counties  jurisdic- 
tion, notwithstanding  the  apportioned  claims  should 
be  less  than  the  sum  of  which  they  have  jurisdiction, 
and  confirmed  prior  proceedings,  in  such  cases. 

It  was  held,  in  one  of  the  earlier  cases,  that  a  claim 
under  these  Acts  could  not  be  filed  before  an  alder- 
man.^ 


1  Woodruff  V.  Chambers,  1  H.  132.     Curry  v.  Spink,  11  H.  58. 

2  Wb.  Dig.  5  Ed.  pi.  155. 


20-1  PARTIES  TO  THE  PKOCEEDING. 


CHAPTER  III. 

OF   TUE   PARTIES  TO   THE   PROCEEDING. 

The  question,  who  shall  be  parties  to  the  proceed- 
ings under  these  Acts,  must  be  considered,  with  refe- 
rence to  the  claimant  as  well  as  the  defendants,  and 
in  doing  this  we  shall  treat  first  of  the  claim  and  then 
the  scire  facias. 

The  Acts  of  1803  and  1806  speak  of  a  claim,  but 
no  provision  is  made  as  to  its  form  in  this  or  any  other 
respect. 

It  is  difficult,  however,  to  understand  how  a  claim 
can  be  filed,  without  specifying  the  name  of  the  claim- 
ant. 

The  Act  of  1 836,  expressly,  declares,  that "  the  name 
of  the  party  claimant  must  be  set  forth." 

He  is  undoubtedly,  therefore,  a  party  of  record; 
and  any  omission  of  his  name  would,  probably,  be  a 
fatal  defect,  and  render  the  claim  inoperative. 

We  shall  defer  our  remarks  upon  the  mode  of 
stating  the  name  of  the  claimant,  until  w^e  come  to 
speak  of  the  form  of  the  claim. 

We  may,  however,  refer,  in  this  connexion,  to  a 
case  in  wdiich  it  was  held,  that,  where  an  architect 
contracted  with  the  owner  to  build  a  house,  and  after- 
wards, took  a  partner  in  with  him,  in  the  work,  the 


PARTIES  TO  TTHE  PROCEEDING.  205 

two  could  not  join  in  filing  a  claim,  because  the  owner 
had  made  no  joint  contract  with  them;  but,  it  is, 
doubtfully,  intimated,  that  the  incoming  partner  might 
have  filed  a  claim  for  himself,  against  the  owner  and 
contractor  together,  if  the  facts  permitted  it/ 

Of  course,  except  in  case  of  death,  the  party  claim- 
ant would,  also,  be  the  one  in  whose  name  the  scii^e 
facias  issues.  "Where  a  claim  is  assigned  or  marked 
to  the  use  of  another,  the  proceeding  must  continue  in 
the  name  of  the  assignor,  as  the  legal  plaintiff. 

We  next  come  to  those  against  whom  the  claim 
is  filed,  or  the  parties  defendant,  in  the  proceeding. 
The  cases  bearing  upon  their  relation  to  the  record 
are  much  more  numerous,  than  those  in  reference  to 
the  claimant;  though  the  earlier  Acts  are  equally 
silent  as  to  both. 

In  Christine  v.  Manderson,  it  is  said :  "  The  Act  of 
17th  March,  1806,  does  not  require,  that  the  claim 
shall  contain  the  name  of  the  owner  or  contractor. 
It  makes  the  building  subject  to  the  debt  contracted 
for  materials  furnished  or  work  done  in  erectino:  it. 

o 

The  claim,  therefore,  in  the  present  instance,  would 
have  been  good,  though  it  had  not  stated,  as  it  does, 
the  name  of  the  owner  or  reputed  owner."  ^ 

In  another  case,  a  claim  "  against  the  owners  or  re- 
puted owners,"  "and  against  all  other  person  or  per- 
sons, owners  or  possessors  of  said  building,"  Avas  held 
sufficient.'^ 

In  Hampton  v.  Broom,  a  claim  was  filed,  prior  to 

1  Barker  v.  Maxwell,  8  W.  478.  «  2  B.  364. 

»  Harker  v.  Conrad,  12  S.  &  11.  301.^ 


20G  PARTIES  TO  THE  PROCEEDING. 

the  Act  of  183G,  which  described  the  house;  but  no 
mention  is  made,  in  the  report  of  the  case,  of  any 
statement  in  the  claim  of  the  name  of  owner  or  con- 
tractor. A  scire  facias  issued  upon  it  against  0.,  as 
contractor,  and  L.  as  owner,  on  the  trial  of  which, 
the  person  named  as  owner  proved,  that  he  was  not 
such,  and  judgment  was  given  against  the  plaintiff. 
A  second  scire  facias,  on  the  same  claim,  was,  subse- 
quently, issued,  against  0.  as  contractor,  and  B.  as 
owner,  to  which  the  defendants  pleaded  the  prior  judg- 
ment as  a  "former  recovery."  In  answer  to  the  ar- 
gument against  such  a  plea,  that  the  former  scire  fa- 
cias was  not  between  the  same  parties,  it  was  urged, 
that  the  claim  upon  which  both  writs  were  founded 
was  the  same;  that  the  Act  of  180G  did  not  require 
a  specification,  in  the  claim,  of  the  name  of  the  owner 
or  contractor,  but  was  satisfied  by  a  description  of  the 
building;  that,  in  Savoy  v.  Jones,  2  R.  343,  it  had 
been  distinctly  decided,  that  the  credit  was  given,  not 
to  the  owner,  but  to  the  building,  "the  object  of  the 
legislature  being  to  enable  the  mechanic  or  material 
man  to  follow  his  labour  or  materials  into  the  build- 
ing, which  is  pledged  for  the  price,  without  regard  to 
the  estate  of  the  owner; "  and,  that  this  doctrine,  taken 
in  its  widest  extent,  certainly  implied,  that  no  obliga- 
tion existed,  on  the  part  of  the  mechanic  or  material 
man,  to  look  to  the  title  or  authority  of  the  person  who 
might  choose  to  erect  a  building  on  a  lot  of  ground. 

The  court  appeared  to  concede  the  force  of  this  ar- 
gument in  favour  of  the  plea,  as  far  as  it  went,  but 
decided,  that  the  question  turned  upon  the  Act  of 


PARTIES  TO  THE  PROCEEDING.  207 

1808,  which  required  the  scire  facias  upon  the  claim 
to  be  "  against  the  debtor  and  owner  of  the  building, 
or  the  executors  and  administrators;"  and  that  it  was 
competent,  upon  a  trial,  for  either  of  the  defendants, 
to  prove,  that  the  one  named  as  such  was  not  the  real 
owner,  and  thus  defeat  the  action;  and,  that,  therefore, 
the  judgment  upon  the  first  sciVe  facias,  in  favour  of 
the  one  who  was  not  the  owner,  was  no  bar  to  the 
second  scire  facias,  against  the  true  owner.^ 

This  case  shows,  most  conclusively,  that,  under  Acts 
prior  to  that  of  1836,  it  was  competent  for  a  claimant 
to  file  his  claim,  without  any  mention  of  the  owner  or 
contractor,  and,  that,  if,  in  his  scire  facias,  he  mistook 
their  names,  he  might  discontinue,  or  become  nonsuit, 
and  issue  new  process,  on  the  same  claim,  against  other 
persons. 

Notwithstanding  this  license,  however,  the  practice 
seems  to  have  been,  to  mention  the  name  of  the  con- 
tractor, and  owner,  or  reputed  owner.  And,  in  one 
case,  in  which  a  mistake  was  made  in  the  name  of  the 
owner,  the  court  seem  to  have  considered  the  error 
fatal.  ^ 

While  the  legislation  with  reference  to  the  form  of 
the  claim,  in  this  respect,  was  so  deficient,  the  Act  of 
1808  provides  for  ?it  scire  facias  "against  the  debtor  and 
owner  of  the  building,  or  their  executors  or  adminis- 
trators." 

The  word  "debtor,"  in  this  Act,  was  intended  to 
refer  to  the  person  who  is  called,  in  the  Act  of  1836, 

'  1  M.  211.  »  Hays  V.  Tryon,  2  M.  208. 


208  PARTIES  TO  TUE  PROCEEDING. 

the  contractor.  And  it  was  held,  at  an  early  period, 
that  he  must  be  made  a  party.  The  court  say :  "  There 
is  great  reason  why  the  contractor  should  be  made  a 
party  to  the  proceeding  on  sci.  fa.,  though  the  judg- 
ment and  execution  on  it  can  only  affect  the  house. 
He,  alone,  knows  the  persons  who  supplied  the  ma- 
terials, the  price  at  which  they  were  to  be  furnished, 
and  who  did  the  work  and  the  price  agreed  on.  If 
he  contracted  to  finish  the  building,  for  a  certain  sum, 
he  may  become  liable  to  the  owner,  who  has  been 
compelled  to  lose  his  house  or  pay  debts  on  it.  Jus- 
tice to  the  owner  and  to  the  contractor,  then,  requires, 
that  the  debtor  be  a  party  to  the  sci.  fa.,  as  well  as 
the  owner  of  the  building;  and  this  Act  is  express, 
that  he  shall  be  a  party,  and  prescribes  even  the  mode 
of  service  on  him."  ^ 

The  Act  of  1836,  is  still  more  explicit,  in  this  re- 
spect; and  the  case  of  Barnes  v.  Wright,  already  cited, 
under  the  Act  of  1808,  seems  entirely  applicable  to 
its  terms.  The  contractor  must,  it  would  appear,  be 
a  party.  And  if  one  not  the  contractor  be  made  a 
party,  as  such,  the  error  will  be  fatal.^ 

Where  there  is  no  contractor,  however,  but  the 
owner,  no  other  can,  of  course,  be  introduced;  and  it 
is  not  necessar}^,  it  would  seem,  to  call  the  owner 
contractor,  if  he  is  made  a  party  as  owner. 

In  Knabb's  Ap.  the  court  say: — "Harper  is  named 
as  owner,  or  reputed  owner,  and  no  one  is  designated 


1  Barnes  v.  Wright,  2  Wh.  193.   See  Rogers  v.  Klingler,  3  Wh.  335. 
'  Davis  V.  Stratton,  9  Leg.  Int.  11. 


PARTIES  TO  THE  PROCEEDING.  209 

as  contractor,  architect,  or  builder.  This  is  the  third 
exception.  But  the  Act  requires,  in  express  terms, 
a  contractor  to  be  named,  only,  where  the  contract 
was  made  with  a  builder,  distinct  from  the  owner  of 
the  building;  and  the  decisions  have  not  extended 
these  terms  beyond  their  obvious  meaning:  Jones  v. 
Shawan,  4  W.  &  S.  262;  Sullivan  «;.  Johns,  5  Wh. 
366.  To  be  sure,  in  the  latter  case,  it  is  observed, 
there  is  no  objection  to  naming  an  owner,  who  built 
the  house  for  himself,  as  owner,  or  contractor,  or  both. 
It  is  so  done,  in  this  instance,  in  the  claim  filed  by 
Davis  and  Whitaker.  But  there  is  no  imperative 
necessity  for  this.  It  has  even  been  said,  that,  as  the 
name  is  only  a  circumstance  of  description,  to  specify 
the  property,  entire  accuracy  as  to  the  ownership  may 
not  be  indispensable.  Certain  it  is,  the  proceeding 
being  in  rem,  the  object,  in  stating  the  names  of  the 
parties  connected  with  the  structure,  is  a  designa- 
tion of  the  thing  and  not  of  the  person.  This  ob- 
ject is,  generally,  effected  by  naming  the  owner,  alone. 
Still,  where  there  is  also  a  contractor,  builder,  or 
architect,  conformity  with  the  statute  requires  him  to 
be  named.  What  would  be  the  effect  of  a  neglect 
to  notice  him,  in  a  proper  case,  we  are  not  called  on 
to  declare,  since  it  no  where  appears  there  was,  in  this 
case,  a  distinct  contractor."^ 

In  Richcbaugh  v.  Dugan,  the  defendant  offered  to 
show,  that  there  were  two  contractors;  only  one  l)eing 
named.  The  court  disregarded  the  offer,  on  the  ground, 
however,  that  it  was  not  pleaded  in  abatement." 

>  2  Wh.  193.  ^  7  B.  394. 

li 


210  PARTIES  TO  THE  TROCEEDING. 

In  regard  to  the  owner,  there  is  more  difficulty.  In 
the  case  of  Hampton  v.  Broom,  just  referred  to,  it  ap- 
pears, that,  under  the  Act  of  1S08,  if  made  a  party  to 
the  scire  facias,  he  must  have  been  correctly  named; 
and,  that  any  omission  or  defect,  in  this  particular, 
was  fatal. 

The  practice  seems  to  have  arisen,  under  this  enact- 
ment, of  filing  a  claim  and  issuing  a  scire  facias  against 
some  person,  as  "owner  or  reputed  owner."  In  one 
of  the  cases,  already  referred  to,  the  court  say : — "  Un- 
doubtedly, the  plaintiff  ought  to  have  made  the  owner 
a  party,  and  have  service  made  upon  him,  if  he  knows 
him.  That  is,  frequently,  however,  not  in  his  power, 
owing  to  unknown  transfers,  and  apparent  ownerships ; 
and,  hence,  the  practice  of  proceeding  against  a  re- 
puted owner,  since  incorporated  into  the  Act  of  1836."  ^ 

In  Anshutz  v.  M'Clelland,  a  building  was  erected 
by  a  lessee,  who  made  the  contract,  with  the  know- 
ledge of  the  owner.  The  court  held,  that  under  the 
circumstances,  claims  filed  against  the  lessee  and  con- 
tractor alone,  were  sufficient,  and.  that,  under  the  pro- 
ceedings upon  such  a  claim,  the  whole  fee  of  the  land 
might  be  sold.  The  court,  however,  in  its  decision 
presents  views  which  are  applicable  here.  It  says : — 
"  It  may  be,  that  where  the  owner  of  the  house  is  not 
made  a  party  to  the  scire  facias,  he  may  not,  there- 
after, be  precluded  from  setting  up  any  defence,  in  an 
action  of  ejectment  brought  against  him  by  the  pur- 
chaser at  sheriff's  sale,  which  he  might  have  made  in 

^  Christine  v.  Manderson,  2  B.  365. 


PARTIES  TO  THE  PROCEEDING.  211 

the  scire  facias,  had  he  been  warned  by  it.  The  Act 
of  1808,  which  authorizes  the  suing  of  the  writ  of  scire 
facias  upon  a  mechanic's  lien  'against  the  debtor  and 
OAvner  of  the  building/  to  notify  them  to  show  cause, 
if  any  they  have,  why  the  plaintiff  should  not  have 
execution  for  the  amount  of  his  debt,  against  the  build- 
ing, can  only  be  considered  directory,  so  far  as  it  pro- 
vides for  the  scire  facias  being  sued  out  against  the 
Givner:  it  would  be  attended  with  great  inconvenience, 
as  well  as  tend  to  defeat  the  purpose  of  the  Act,  if  it 
were  to  be  held  otherwise;  for  the  owner  may,  or  may 
not  be  known  to  the  creditor;  and  it  was,  certainly, 
not  the  intention  of  the  legislature,  that  his  security 
for  the  payment  of  his  debt,  or  that  his  remedy  for 
recovering  it  should  be  lessened  or  diminished,  in 
the  least,  because  he  might  not  know  the  owner;  and 
if  the  owner,  when  not  made  a  party  to  the  writ,  be 
permitted  to  defend  in  the  ejectment,  as  he  might  have 
done  in  the  scire  facias,  had  he  been  warned,  in  pur- 
suance of  it,  no  injustice  or  injury  can  accrue  to  him, 
from  his  name  being  left  out  of  it."^ 

This  was  the  state  of  the  decisions,  under  the 
earlier  Acts,  in  regard  to  the  owner.  The  twelfth  sec- 
tion of  that  of  183G  provides,  that  evcr_y  claim  must 
set  forth:  "The  names  of  the  party  claimant  and  of 
the  owner  or  reputed  owner  of  the  builduig,  and,  also, 
of  the  contractor,  architect  or  builder,  where  the  con- 
tract of  the  claimant  was  made  with  such  contractor," 
&c. 

The  difference  between  this  enactment,  and  that  in 

»  5  W.  490. 


212  TARTIES  TO  THE  PROCEEDING. 

the  Act  of  1808,  in  reference  to  the  scire  facias,  ap- 
pears to  be,  that  the  latter,  merely  provides,  for  a 
scire  facias  "against  the  debtor  and  owner  of  the 
building,"  without  any  words  requiring  them  to  be 
made  parties;  while  the  Act  of  1836,  declares,  that 
the  clahn  ^'must  set  forth,"  as  we  have  above  recited. 
The  decision,  therefore,  in  Anshutz  v.  M'Clelland, 
that  the  words  of  the  Act  of  1808,  on  this  subject, 
were  merely  directory,  cannot  be  considered  as  appli- 
cable to  the  present  statute. 

In  that  case,  the  argument  is  pressed,  that  the 
claimant  may  not  know  the  owner.  The  Act  of  1836 
expressly  provides  for  such  a  case,  by  allowing  a  claim 
to  be  fded  against  a  "reputed  owmer."^ 

But  it  appears,  from  the  cases  under  this  Act,  that, 
where  the  claim  purports  to  declare  the  name  of  the 
owner,  and  mistakes  it,  altogether,  the  error  is  fatal. 

In  Noll  V.  Swineford  a  claim  defective,  in  this  re- 
spect, was  held  to  be  invalid.  The  court  say : — "  There 
is  a  wide  difference  between  misnaming  a  defendant, 
natural  or  artificial,  which  was  the  fact  in  all  the  cases 
cited  on  this  point,  by  the  plaintiff  in  error,  and  omit- 
ting, altogether,  to  bring  into  Court  the  only  proper 
party,  by  process  duly  served.  The  first  error  can 
only  be  objected  to  by  plea  in  abatement;  but  the  se- 
cond would  seem  to  be  fatal,  in  every  step  of  the  cause; 
for  the  simple  reason,  that  the  plaintiff,  in  personal 
actions,  must,  of  necessity,  fail,  in  his  proof,  to  charge 
the  party  improperly  sued;  and  where  the  proceeding 

1  Sec  Jones  v.  Shawan,  4  W.  &  S.  262. 


PARTIES  TO  THE  PROCEEDING.  213 

is  in  rem,  because  he  has  given  no  notice  to  those  whose 
privilege  it  is  to  take  defence."^ 

In  Brimer  v.  Sheik,  an  Insurance  company  rebuilt 
a  house  partially  destroyed  by  fire,  in  fulfilment  of 
the  covenant  in  the  policy.  A  material  man  filed  a 
claim  in  which  he  named  the  company  as  owner.  The 
court  held,  that,  after  the  Act  of  1840,  such  a  claim 
could  not  bind  the  fee,  but  only  the  interest  of  the 
company,  which  was  nothing,  and  add :  "  So  well  were 
the  parties  aware  of  this,  that,  only  the  company  was 
required  to  appear  and  plead;  and  by  not  ruling  the 
other  defendants  to  appear  and  plead,  also,  the  plain- 
tiff evinced  a  consciousness,  that  they  were  not  an- 
swerable. For  want  of  it,  a  judgment  in  his  favour 
would,  at  all  events,  have  been  erroneous."  ^ 

In  a  case  in  the  District  Court  for  the  city  and 
county  of  Philadelphia,  the  defendant,  who  was  sued 
as  owner  and  contractor,  alleged,  that  he  never  was 
either  contractor  or  owner.  The  court  say:  "It  may 
be,  therefore,  that  he  cannot  be  damaged  by  this  pro- 
ceeding, which  is  still  purely  a  process  against  the  thing. 
Still,  however,  that  a  judgment  against  him  as  contrac- 
tor in  this  proceeding,  in  which  he  has  been  summoned, 
would  be  evidence  against  him,  in  a  personal  action, 
has  never  been  decided ;  but  we  think,  that  the  plain- 
tiff, having  chosen  to  make  him  a  defendant,  he  has 
a  right  to  take  this  defence,  and  that,  if  substantiated, 
it  must  be  fatal  to  the  plaintiff's  lien  and  proceeding."^ 


'  6  B.  187.  '  9  W.  &  S.  120. 

'  Davis  V.  Stratton,  9  Leg.  Int.  11. 


214  PARTIES  TO  TITE  TROCEEDING. 

In  tlio  case  of  an  apportioned  claim,  there  appears 
to  be  a  greater  necessity,  than  in  others,  to  be  accu- 
rate in  this  respect.  In  such  case,  the  owners  of  all 
the  houses  must  be  the  same,  or  the  lien  is  not  within 
the  provision  of  the  Act/ 

A  question  of  some  moment  arises,  under  this  head. 
Must  the  person  named  as  owner,  in  the  claim,  be  such, 
at  the  commencement  of  the  building,  at  the  time  of 
doing  the  work  or  furnishing  the  materials,  or  at  the 
time  when  the  claim  is  filed  ?  What  notice,  if  any, 
must  be  taken,  in  the  proceedings,  of  such  changes  of 
title? 

In  a  case  arising  under  the  Act  of  1836,  a  claim  was 
filed  against  a  person,  as  contractor,  who,  at  the  time 
the  work  was  done,  w^as  owner;  and  against  one  as 
owner,  who  became  such  after  that  time.  The  pro- 
ceedings Avere  sustained.  The  court  say:  "Naming 
a  person  as  contractor,  or  owner,  or  both,  when  he  was 
such  at  the  time  of  the  contract,  w^ould  seem  to  be 
liable  to  no  objection,  arising  either  from  the  words  or 
spirit  of  the  act;  nor  is  any  error  perceived  in  filing 
the  claim  against  a  person  who  has  become  the  pur- 
chaser after  the  building  is  finished,  but  before  the 
claim  is  filed,  and  who  remains  the  owner,  or  who  is 
the  reputed  owner,  at  the  time  it  is  filed.  The  owner 
complains  with  a  bad  grace  of  a  proceeding,  which 
gives  him  notice  of  the  lien  on  his  property,  and,  at 
the  same  time,  an  opportunity  to  make  a  defence,  and 
which  subjects  him  to  no  personal  liability  whatever."^ 

»  Gorgas  v.  Douglas,  6  S.  &  K.  520. 
*  Sulli'van  V.  Johns,  5  Wh.  369. 


PARTIES  TO  THE  PROCEEDING.  215 

In  Jones  v.  Shawan,  it  was  made  a  question,  whe- 
ther a  person  who  purchased  the  premises,  after  ma- 
terials were  furnished,  but  before  a  claim  was  filed, 
must  be  made  a  party  to  the  claim. 

The  court,  Gibson,  Ch.  J.,  says, — "The  direction, 
that  a  claimant  is  not  bound  to  file  against  one  who 
was  not  the  owner  when  the  building  was  commenced, 
is  not  erroneous.  The  Act  of  1803  provided  for  debts 
contracted  by  the  owner,  and,  consequently,  by  him 
who  was  owner,  when  the  work  or  material  was 
ordered.  That  act  was  superseded,  not  to  change  this 
provision,  but  to  provide  for  cases  in  which  the  debt 
has  been  incurred,  not  by  the  owner,  but  by  a  builder 
or  contractor.  Still,  where  the  owner  is,  himself,  the 
builder,  the  claim  must  be  filed  against  him,  as  the 
person  known  to  the  creditor,  and  not  his  unknown 
successor  in  the  title.  Though  a  subsequent  terre  te- 
nant has  intervened,  the  claim  is,  necessarily,  to  be 
filed  against  his  predecessor;  and  why  should  there 
be  another  rule  for  a  debt  incurred  by  a  contractor? 
As  there  is  no  reason  for  a  difference,  I  take  it,  the 
name  of  the  original  owner  may  safely  be  used.  But 
as  the  claim  is  against  the  building,  instead  of  the 
person,  and,  as  the  name  is  only  a  circumstance,  of 
description,  to  specify  the  property  and  give  notice  to 
purchasers,  entire  accuracy  in  regard  to  the  ownership 
may  not  be  indispensable;  the  more  so,  as  the  statute 
expressly  requires  no  more  than  the  name  of  the  re- 
puted owner;  and  it  might  be  sufficient  to  file  it 
against  the  past,  or  the  present  one.  It  is  certain, 
however,  that  tiie  name  of  the  owner  when  the  build- 


216  PARTIES  TO  THE  niOCEEDING. 

ing  was  commenced,  satisfies  the  requirements  of  the 
law.  A  creditor  may  have  occasion  to  file  one  claim 
against  several  houses,  apportioning  to  each,  its  part 
of  the  general  burden ;  and  how  would  he  be  able  to 
dispose  of  the  names  of  intervening  purchasers  of  se- 
parate interests  ?  He  ought  not  to  be  charged,  in  such 
a  case,  with  the  difficulty  of  discriminating;  nor  could 
he,  perhaps,  discriminate;  for  where  the  claim  is  a 
joint  one,  the  ownership  ought  to  be  joint.  But,  having 
filed  his  claim  against  the  original  owner,  the  scire 
facias  must  conform  to  it,  nor  is  there  a  provision  for 
bringing  in  the  purchaser  as  terre  tenant.  In  Anshutz 
V.  McClelland,  (5  Watts,  487,)  a  scire  facias  was  held 
to  lie  against  a  lessee  for  years,  only,  when  the  claim 
lias  been  filed  against  him  as  the  person  who  employed 
the  claimant.  This,  too,  shows,  that  the  tenant  of  the 
freehold,  at  the  filing  of  the  claim,  is  not,  necessarily, 
the  person  to  be  named."  ^ 

It  would  appear,  from  these  cases,  that,  where  the 
owner,  at  the  time  the  contract  is  made,  or  the  work 
done  or  materials  furnished,  is,  also,  the  contractor  or 
builder,  he  must  be  made  a  party;  but  that  if  he  be 
not  when  the  claim  is  filed,  either  he  or  the  owner 
at  that  time,  may  be  the  defendant. 

It  will,  also,  be  remarked,  however,  that  it  is  strongly 
intimated,  that  if  the  owner,  at  the  time  of  the  issuing 
of  the  scire  facias,  is  not  warned,  he  may  not  be  pre- 
cluded, ^'from  setting  up  any  defence  in  an  action  of 
ejectment  brought  against  him  by  the  purchaser  at 

M  W.  &  S.  262. 


PARTIES  TO  THE  PROCEEDING.  217 

sheriff's  sale,  which  he  might  have  made,  in  the  scire 
facias. 

Perhaps  the  safest  way  is,  to  file  the  claim  against 
the  person  or  persons  who  was  or  were  owner  and 
huilder,  or  contractor,  at  the  time  the  contract  was 
made,  or  the  work  done  or  materials  furnished,  and 
give  notice  to  the  person  who  is  the  owner,  when  the 
writ  issues. 

Whether  a  person,  however,  is  made  a  party  or  not, 
he  can,  in  respect  of  certain  interests,  make  himself  a 
party,  by  coming  in  to  defend. 

In  the  case  of  M'Adam  v.  Baily,  a  person  who  held 
mortgage  against  the  property,  executed  subsequently 
to  the  commencement  of  the  building,  asked  to  come 
in  and  take  defence,  and  he  was  allowed  to  do  so.  The 
court  say: — "The  sci.  fa.  is  expressly  directed  to  be 
served  on  the  premises;  and,  as  a  terre  tenant  would 
be  concluded  by  a  judgment  in  the  proceedings,  he 
may,  of  course,  come  in  and  claim  to  take  defence. 
But,  is  the  mortgagee  a  terre  tenant?  He,  evidentlj^, 
to  the  extent  of  his  security,  is  liable  to  be  cut  out  by 
mechanic's  liens;  he  has  an  interest,  and  why  should 
he  not  be  heard?  It  has  been  said,  that  so  has  any 
judgment  creditor  an  interest  to  be  affected.  The 
difference  between  a  judgment  creditor  and  a  mort- 
gagee is  very  plain.  The  latter  has  a  title,  jus  in  re 
as  well  as  ad  rem.  For  all  purposes  essential  to  the 
maintenance  of  his  security,  he  is  the  legal  owner. 


'  Anshutz  V.  M'Clelland,  5  W.  490.     Cbristiae  v.  Mauderson,  2 
B.  3G3. 


218  PARTIES  TO  THE  TROCEEDING. 

He  is  a  purclicaser,  within  the  statute  27  Eliz.,  may 
recover  the  possession  b}^  ejectment,  and  have  a  writ 
of  estrcpement  to  stay  waste.  It  is  very  plain,  that,  when 
an  estate  is  incumbered  much  bejond  its  value,  it  may 
not  be  sufliciently  important  to  the  insolvent  owner 
to  induce  him  to  spend  time  and  money  in  contro- 
verting particular  claims.  Very  gross  injustice  might 
result,  if  the  mortgagee,  who  has  as  much  advanced  his 
mone}'  on  the  fjiith  of  this  specific  property,  as  the 
man  who  may  have  taken  an  absolute  title,  could  not 
be  allowed  to  take  defence  in  this  case."^ 

It  will  be  found,  that  many  of  the  most  important 
questions  under  the  mechanic's  lien  law,  have  been 
presented  by  the  objections  of  other  lien  creditors, 
before  auditors  appointed  to  distribute  the  proceeds  of 
sheriff's  sales  of  lands  afiected  b}^  such  liens.  These 
cases  we  shall  refer  to  more  particularly  hereafter.  ^ 

1  9  Leg.  Int.  30. 

^  Knabb's  Ap.  10  B.  101.     Lauman's  Ap.  8  B.  473.     Thomas  v. 
James,  7  W.  &  S.  381. 


THE  CLAm.  219 


CHAPTER   III, 


OF  THE  CLAIM. 


We  shall,  for  greater  clearness,  present  this  subject 
of  the  claim,  first  with  reference  to  its  form,  second, 
the  filing  of  it. 

"We  have  alrea<ly  remarked  upon  the  peculiar  indul- 
gence which  our  courts  have  extended  to  the  practice 
under  these  Acts.  In  no  part  of  the  proceeding  has 
this  indulgence  been  shown,  more  decidedly,  than 
witli  reference  to  the  claim  and  its  form. 

The  Act  of  1803  provided,  that  the  debt  for  work 
and  materials  should  not  remain  a  lien  longer  than 
two  years,  "  unless  an  action  for  the  recovery  thereof 
be  instituted,  or  tlie  claim  filed,  within  six  months 
after  performing  the  work,  or  furnishing  the  materi- 
als."     Similar  words  are  found  in  the  Act  oflSOG. 

It  will  be  seen,  that,  both  the  action  and  the  claim 
are  spoken  of  as  modes  of  continuing  the  lien. 

It  is  manifest,  from  the  language  of  the  earlier  Act, 
at  least,  that  it  contemplated  the  case  of  a  person 
building  on  his  own  ground.  It  provides,  only,  for  a 
debt  contracted  by  the  owner,  and  had  regard  to  a  re- 
medy in  personam,  as  well  as  in  rem,  which  would  con- 
tinue the  lien  and  recover  the  debt.  But  it  gives  no 
indication  of  the  character  of  this  "action."  Whe- 
ther, prior  to  the  scire  facias  given  by  the  Act  of  1808, 


220  THE    CLAIM. 

the  action  was  to  have  been  on  the  claim ;  or,  what 
relation  the  claim  had  to  the  action,  docs  not  appear. 

In  Steinmetz  r.  Boudinot,  an  action  of  assumpsit, 
was  brought  for  bricks  sold  and  delivered,  against  the 
owner.  The  court  say  upon  this  point:  "There  is  a 
powerful  objection,  too,  to  the  form  of  this  action.  If 
judgment  be  entered  against  the  defendant,  he  is  lia- 
ble, i^crsonalhj,  for  the  amount  of  the  judgment.  But 
that  would  be  most  unjust,  even  supposing  a  lien  to 
exist,  if  his  liability  is  only  in  consequence  of  the  lien, 
and  not  because  he  contracted  the  debt,  himself.  If 
an  action  on  the  case  can  be  supported,  I  should  think 
it  ought  to  be  special,  and  to  mention  the  manner  in 
which  the  defendant  is  liable,  in  order  that  a  special 
judgment  might  be  entered,  not  affecting  the  person 
of  the  defendant,  but  the  building  only''  ^ 

In  a  still  later  case,  it  was  held,  that  taking  a  bond 
and  warrant  of  attorney  from  the  owner,  and  causing 
judgment  to  be  entered  on  it,  were  not  the  institu- 
tion of  an  action,  within  the  meaning  of  the  Act.-^ 

In  Rogers  v.  Klingler,  a  material  man  brought  an 
action  of  assumpsit  against  the  contractor,  filed  a 
copy  of  the  book  entries  upon  which  the  action  was 
brought,  took  a  judgment  for  want  of  an  affidavit  of 
defence,  and  sold  the  house.  In  an  ejectment  for 
the  premises,  the  question  arose,  whether  any  title 
passed  by  the  sale,  under  such  a  proceeding.  The 
Court,  without  deciding,  whether  that  was  the  species 
of  action  indicated  by  the  Acts  in  question,  held, 

^  3  S.  &  R.  542.  ^  See  Bickel  v.  James,  7  W.  9. 


THE  CLAIM.  221 

that  by  the  Act  of  1808,  "it  was  only  one  having  a 
claim  filed,"  who  could  recover  by  personal  action, 
or  by  scire  facias,  and  that,  as  no  claim  was  filed  by 
the  plaintift',  his  suit  was  not  within  the  Act.  But  it 
further  says  :  "  I  will  not  say.  that  if  the  plaintiff  had 
brought  a  special  action  on  the  case,  against  the  con- 
tractor, setting  forth  the  liability  of  the  building,  and 
obtained  a  special  judgment  thereon,  and  sale  of  the 
building,  in  conformity  with  the  suggestion  of  Chief 
Justice  TiLGHMAN,  above  referred  to,  a  sale  within 
two  years,  might  not  have  made  the  lien  available. 
But  that  was  not  done  here  :  the  suit  was  personal, 
the  recovery  personal,  and  the  execution  and  sale  were 
only  of  the  right  of  the  defendant,  the  contractor. 
Even  in  the  case  I  have  supposed,  however,  the  court 
would,  I  should  think,  require  the  owner,  if  within 
reach,  to  be  made  a  party  to  the  suit,  or  at  least  to 
have  notice,  and  the  opportunity  of  contesting  the 
claim."  ^ 

But,  without  reference  to  this  difficulty,  in  regard  to 
the  action,  the  Acts  speak  distinctly  of  a  claim;  and 
it  was  the  habit  to  file  such  a  paper  long  prior  to  the 
Act  of  1836. 

It  is  a  mere  ex  parte  proceeding.  The  paper  is 
drawn  Ijy  the  party  or  his  counsel,  and  filed,  without 
any  motion  or  application  to  the  court.  When  filed, 
it  is  not  a  record,  but  is  in  much  the  same  position 
as  the  registry  of  a  mortgage/  It  is,  at  once,  entered 
upon  the  index  of  claims. 

'  3  Wh.  335. 


222  THE  CLAIM. 

No  form  was  provided  in  the  earlier  Acts.  The 
Act  of  183G  gives  some  aid,  in  this  respect.  But, 
even  since  its  passage,  it  has  been  said  in  one  of  the 
decisions : — "  No  particular  form  is  prescribed  for  these 
instruments,  nor  has  a  general  practice,  under  the 
statute,  assigned  to  them  a  technical  garb.  The 
shapes  they  are  made  to  assume,  in  different  counties, 
and  even  in  the  same  county,  are  almost  as  various 
as  the  intelligence  and  business  tact  of  those  who  pre- 
pare them  for  the  office  files."  ^ 

It  is  said,  in  the  same  case,  that  the  great  object  of 
the  several  provisions  of  the  Act  is  notice, — the  safety 
of  owners,  purchasers  and  other  lien  creditors. 

By  the  Act  of  1836,  sec.  12,  every  claim  must  set 
forth: 

"  First,  The  names  of  the  party  claimant,  and  of  the 
owner  or  reputed  owner  of  the  building,  and  also  of 
the  contractor,  architect  or  builder,  where  the  contract 
of  the  claimant  was  made  with  such  contractor,  archi- 
tect or  builder. 

'•Second,  The  amount  or  sum  claimed  to  be  due,  and 
the  nature  or  kind  of  the  work  done,  or  the  kind  and 
amount  of  materials  furnished,  and  the  time  when  the 
materials  were  furnished  or  the  work  was  done,  as  the 
case  may  be. 

"  Third,  The  locality  of  the  building  and  the  size  and 
number  of  the  stories  of  the  same,  or  such  other  mat- 
ters of  description  as  shall  be  sufficient  to  identify  the 
same." 

'  Davis  V.  Church,  1  W.  &  S.  242.         '  Knabb's  Ap.  10  B.  191. 


THE  CLAIM.  223 

In  their  report  to  which  we  have  ah^eacly  referred, 
the  Commissioners  say  of  this  section:  "In  the  13th 
(12)  section,  it  is  proposed  to  dechare  certain  points  to 
be  essential  to  the  validity  of  the  claim.  The  object 
of  filing  a  claim  is,  to  give  notice  to  third  persons  of 
the  names  of  the  parties,  the  amount  alleged  to  be 
due,  and  the  property  upon  which  the  lien  is  claimed. 
Unless  these  are  distinctly  stated,  it  is  obvious,  that 
the  notice  is  of  little  value.  Many  claims,  however, 
have  been  filed  deficient  in  these  essentials,  probably 
from  want  of  sufficient  precision  in  the  law.  It  is 
believed,  that  the  directions  of  this  section  can  be  fol- 
lowed by  the  lien  creditors,  without  difficulty,  and, 
that  it  will  tend  to  facilitate  their  entering  claims,  with- 
out professional  assistance." 

We  will  take  these  provisions  in  tlieir  order,  and 
show  how  far  their  terms  have  been  construed  by 
decision. 

The  first  requisite  of  the  Act  is  the  names  of  the 
parties.  How  far  these  are  essential,  we  have  already 
stated,  in  treating  of  the  parties  to  the  proceeding. 

Whatever  indulgence  or  latitude  the  cases  may 
allow,  in  this  particular,  the  only  safe  rule  is,  to  as- 
certain, with  certainty,  who  claimant,  owner  and  con- 
tractor are,  and  insert  their  names. 

There  can,  of  course,  be  no  difficulty  in  ascertain- 
ing who  the  claimant  is  and  inserting  his  name.  He 
must  be  the  person  with  whom  tlie  contract  is  made. 

It  has  been  held,  in  relation  to  this  su))ject,  that  a 
claim  may  be  filed  and  proceedings  had,  in  the  name 


224  THE  CLAIM. 

of  a  firm,  without  specifying  the  names  of  the  indi- 
vidual parties.^ 

And  it  has,  also,  been  held,  that  if  the  individual 
names  of  all  the  parties  are  mentioned,  the  firm  name 
need  not  be.  ^ 

It  is  much  more  regular,  however,  to  insert  the 
names  of  the  f)artners,  as  well  as  of  the  firm. 

As  to  the  owner,  the  particularity  should  be  very 
great.  It  is  his  name  that  makes  the  record  of  the 
lien  notice  to  purchasers  and  others,  and  upon  a 
notice  to  him  depends,  under  the  decisions,  the  con- 
clusiveness of  the  proceeding,  and  the  efficiency  of 
the  final  process. 

If  owners  have  changed,  since 'the  building  began, 
it  is  better  perhaps  to  make  the  owner,  at  that  time, 
the  formal  party. 

It  has  been  made  a  question,  whether,  if  all  the 
proper  parties  are  named,  a  designation  of  their  re- 
spective titles  of  owner  and  contractor  is  essential; 
and  how  far  a  mistake  in  this  respect  will  be  fatal. 

It  would  appear,  from  a  case  decided  in  the  District 
Court  of  Lancaster  county,  that  such  a  designation 
must  be  made.  In  that  case  a  claim  was  filed  against 
G.  H.  charging  him  as  debtor  in  respect  to  the  mate- 
rials furnished.  But  there  was  no  averment  that  he 
was  owner,  or  reputed  owner  of  the  premises,  which 
were  simply  described,  as  adjoining  property  of  J.  Z. 
and  others.  The  claim  was  held  bad.  G.  H.  was,  in 
fact,  both  owner  and  contractor,  as  far  as  appears  from 
the  report  of  the  case.     But  the  question  of  the  neces- 

1  Black's  Ap.  2  W.  &  S.  179.  '  Knabb's  Ap.  10  B.  189. 


THE  CLAIM.  225 

sity  of  designating  G.  H.  as  owner,  ^yas  so  involved 
with  another  question,  of  the  proper  identification  of 
the  house,  that  the  former  can  hardly  be  said  to  be 
decided.^ 

We  find  no  decision  of  the  Supreme  Court,  declaring 
such  a  designation  essential.  Perhaps,  the  better 
opinion  is,  that,  being  mere  matters  of  description,  a 
mistake  or  omission  in  this  respect  is  not  fatal. 

AYhere  the  claim  was  against  a  building  of  which 
F.  was  owner,  but  the  bill  annexed  charged  the  goods 
to  the  contractor,  for  F.  and  Ws.  buildings,  it  was  held, 
that  the  inconsistency  rendered  the  claim  invalid.^ 

The  omission  of  the  initial  of  the  middle  name  of 
the  owner  was  held,  not  to  be  a  valid  objection  to  a 
claim. '"^ 

In  regard  to  the  specification  required  in  the  first 
part  of  the  next  clause,  of  "  the  amount  or  sum  claimed 
to  be  due,"  there  appear  to  have  been  no  decisions. 

The  next  words,  however,  "the  nature  or  kind  of 
the  work  done,  or  the  kind  and  amount  of  materials 
furnished,"  have  led  to  numerous  questions. 

We  may  say,  here,  to  throw  light  on  many  of  the 
cases  to  which  we  shall  refer,  that  it  is  not  essential, 
that  the  body  of  a  claim  should  contain  such  a  specifi- 
cation. It  is  sufficient  if  it  be  annexed  to  the  claim, 
in  the  form  of  a  bill  or  statement.  The  two,  together, 
form  the  claim.'* 

It  is  better,  that  the  bill  should  be  expressly  referred 

'  Gilbert  Ilill'.s  Est.,  3  Pa.  L.  J.  323. 

*  Scott  V.  SendcrliDg,  7  Leg.  Int.  42.        ^  KuaLb's  Ap.  10  B.  187. 

*Id. 

15 


226  THE  CLAIM. 

to,  ill  the  statement;  tliougli  it  is  not,  absolutely,  essen- 
tial, that  it  should  be  mentioned,  if  it  appear  to  have 
been  the  intention  of  the  claimant  to  make  it  a  con- 
stituent portion  of  his  claim. 

There  appears  to  have  been  no  doubt,  at  any  time, 
that  work  done  and  materials  furnished  might  he  in- 
cluded in  the  same  claim.  But  it  was  held  absolutely 
necessary  to  state,  distinctly,  the  amount  of  each. 

In  Noll  V.  Swineford,  the  sum  mentioned  was  stated 
to  be  due  for  work  and  for  materials  furnished  between 
certain  days;  but  there  were  no  items,  no  statement 
of  how  much  was  due  for  each,  nor  any  averment  of  a 
gross  contract.  The  court  held  the  claim  to  be  defec- 
tive, and  say :  "  From  a  perusal  of  that  portion  I  have 
extracted,  it  is  manifest,  the  Act  contemplates  work 
and  labour  done,  and  materials  furnished,  as  distinct 
and  separate  items,  which,  to  be  sure,  may  enter  into 
and  make  part  of  the  same  claim,  but  not  necessarily 
eo,  and  when  so,  not  properly  to  be  confounded,  or 
treated  as  one."^ 

This  was  followed  by  the  Act  of  March  24th,  1849, 
which  enacted," — "  That  it  shall  be  lawful  for  any  me- 
chanic, or  material  man,  in  the  city  and  county  of 
Philadelphia,  and  county  of  Chester,  who  performs 
work  and  furnishes  materials,  to  include  both  in  the 
same  claim  filed :  and,  where  the  value  or  amount  of 
the  work  or  materials  can  only  be  ascertained  by 

'  6  B.  187.  See,  also,  Lauman's  Ap.  8  B.  478.  Thorn  v.  Hougb, 
9  Leg.  Int.  46.     But  see  Bayer  v.  Reeside,  2  H.  168. 

^  This  Act  applies  only  to  the  city  and  county  of  Philadelphia, 
and  the  county  of  Chester. 


THE  CLAIM.  227 

measurement,  when  done,  or  shall  be  done  by  con- 
tract, for  a  stipulated  sum,  it  shall  be  lawful  to  file  a 
statement  of  the  time  when  the  work  was  commenced, 
and  when  finished,  and  of  the  aggregate  price  of  the 
work  and  materials ;  and  all  claims  heretofore  filed  in 
conformity  herewith,  and  not  decided,  judicially,  are 
hereby  confirmed."  We  find,  in  one  of  the  cases  in 
the  District  Court  for  the  city  and  county  of  Philadel- 
phia, a  claim  filed,  apparently  under  this  Act.^ 

In  a  case  in  the  court  of  Common  Pleas,  for  the 
county  of  Philadelphia,  it  Avas  objected  to  a  claim, 
that  it  did  not  set  forth  the  hind  of  lumber  furnished, 
with  sufficient  certainty,  when  it  described  it  as  so 
many  feet  of  lumber  "  third  common."  The  court 
say : — "  This,  if  a  question,  at  all,  was  rather  a  ques- 
tion for  the  court  and  jury  upon  the  trial.  We  are 
bound  to  presume,  that  "third  common,"  is  a  kind  of 
lumber;  and  it  would  be  onerous  to  require  too  great 
a  particularity  in  the  specification  of  the  quality."  ^ 

The  bill  annexed  should,  as  far  as  possible,  give  the 
details  of  the  work  and  materials.  About  the  latter 
there  is  less  difficulty  than  the  former.  The  number 
or  quality  and  kind  of  bricks  or  lumber,  or  of  lime, 
furnished  on  each  day,  &c.,  should  be  given,  with  care 
and  minuteness.  The  rules  of  evidence,  which  we  shall 
refer  to,  hereafter,  do  not  require,  that  the  proof  of  each 
item,  as  to  date  and  amount,  should  accord,  exactly,  with 
the  statement.  We  mention  this  to  show,  that  while, 
of  course,  the  statement  should  be  made,  with  a  view 
to  what  is  to  be  proved,  the  risk  of  the  particularity 

^  Thorn  v.  Heugh,  9  Leg.  Int.  46. 
*  lltToa  V.  Kobinson,  2  Pars.  248. 


228  THE  CLAIM. 

wliicli  is  proper  is  not  so  great,  as  if  entire  agreement 
between  the  allegata  and  probata  was  indispensable. 

In  the  case  of  continuing  Avork,  the  only  particular- 
ity, in  this  respect,  that  seems  possible,  is,  in  stating  its 
nature,  with  the  time  taken  and  number  of  persons 
employed,  and  its  cost  or  value.  Where  it  is  to  be 
measured,  a  statement  of  the  quantity  ascertained  by 
measurement,  and  its  measurement  value,  should  be 
given. 

As  to  the  course  to  be  pursued,  in  case  of  a  special 
contract,  we  shall  speak  hereafter. 

The  Act,  further,  requires  a  statement,  in  the  claim, 
of  "the  time  when  the  materials  were  furnished  or 
the  work  was  done." 

Under  this  clause  of  the  Act,  many  decisions  have 
been  made;  but  they  are  so  confused  and  discordant, 
that  it  is  extremely  difficult  to  deduce  from  them,  any 
rule  or  guiding  principle. 

We  ought  to  say,  however,  that  the  difficulty  is  not 
to  ascertain  from  them  what  form  of  the  claim  in  this 
respect  is  correct  and  regular,  but,  rather,  the  extent 
to  which  omissions  and  irregularities  will  be  indulged. 

Of  course,  the  bill  or  statement  annexed  to  the 
claim,  and  referred  to  in  it,  should,  wherever  it  is  pos- 
sible, state  the  date  of  the  work,  or,  if  continuous,  the 
days  between  which  it  was  done;  and,  as  to  materials, 
the  date  of  each  delivery  with  the  quantity  delivered. 
As  to  cases  of  contract,  we  shall  speak  of  them,  with 
reference  to  this  matter  of  time,  hereafter. 

No  case  has  gone  the  length  of  saving  the  claim, 
when  no  date,  whatever,  was  found,  either  in  the  claim 
or  the  bill  annexed  to  it. 


THE  CLADE.  229 

The  body  of  the  claim,  usually,  contains  a  recital, 
that  the  work  was  done  or  materials  furnished,  "within 
six  months  last  past ; "  and  the  question  has  arisen, 
whether  that  is,  by  itself,  a  sufficient  statement  of  time. 

In  Lehman  v.  Thomas,  the  court  struck  off  a  claim, 
in  which  no  other  statement  of  time  appeared.  In 
its  opinion,  the  court  say :  "  The  materials  are  stated, 
in  this  case,  to  have  been  furnished  within  six  months 
before  the  filing  of  the  claim.  For  purposes  of  speci- 
fication, it  might  as  well  have  been  six  years.  The 
statute  requires  the  date  to  be  inserted,  not  merely, 
that  it  may  appear  the  claim  was  filed  in  time,  but,  to 
individuate  the  cause  or  subject  of  it.  The  claimant 
may  have  filled  many  orders  of  the  contractor  within 
the  period,  and  it  was,  therefore,  necessary  to  specify 
what  was  meant.  A  lumber  merchant  ought  to  be 
able  to  give  day  and  date  for  every  item;  and,  even  a 
mechanic  ou2;ht  to  be  able  to  state  the  commencement 
and  completion  of  his  job,  with  convenient  certainty. 
Where  this  can  be  done,  it  ought  to  be  exacted ;  for 
it  is  a  potent  guard  against  imposition;  and,  to  say 
nothing  about  any  other  exception,  we  are  of  opinion 
the  time  is  too  loosely  stated."  ^ 

In  a  subsequent  case,  the  same  facts  were  presented. 
There  was  a  date  at  the  head  of  the  bill,  but  no  date 
of  any  of  the  items.  The  court  say,  speaking  of  the 
requisitions  of  the  Act,  as  to  amount  and  date;  "All 
of  these  are,  or  ought  to  Ijc,  within  the  peculiar  know- 
ledge of  the  claimant,  from  liis  books  or  otherwise, 

1  5  W.  «&  S.  262. 


230  THE  CLAIM. 

and  must  be  furnished  by  him,  when  filing  his  cLn-im. 
When  dispute  arises,  they  are  essential  to  the  owner 
of  the  building,  the  purchaser,  and  lien  creditor,  to 
enable  them  to  trace  out  the  truth  of  the  claim,  and 
guard  against  error  or  imposition."  And  again:  "In 
relation  to  the  third  class  of  requisites,  the  locality  of 
the  building,  there  is  some  latitude  given;  the  Act 
allows  "the  size  and  number  of  the  stories  or  such 
other  matters  of  description  as  shall  be  sufficient  to 
identify  it."  "But  no  such  latitude  is  permitted  in 
the  first  and  second  classes.  The  items  are  positively 
required ;  and  this  imperative  requisition  of  the  law 
we  are  not  at  liberty  to  dispense  with  or  impair,  by 
a  strained  construction.  The  claim  filed  in  the  pre- 
sent case  is,  in  this  respect,  defective.  There  is  no 
time  stated  in  the  claim  or  bill  appended  to  it,  at 
which  the  work  was  done  or  materials  furnished,  as 
the  Act  of  Assembly  requires.  The  date  of  the  first 
of  April,  1840,  is,  obviously,  the  date  of  the  bill,  and 
nothing  else.  The  claim  does  not  purport  to  state 
that  as  the  time  when  the  work  was  done  or  materials 
furnished  J  and,  a  forced  interpretation  of  this  kind, 
to  sustain  a  claim,  would  establish  a  precedent,  that 
would  defeat  the  object  which  the  Legislature  had  in 
view,  in  requiring  the  time  to  be  stated."  ^ 

In  a  case  prior  to  either  of  these  last  cited,  the  claim 
had  omitted  the  year,  though  the  days  and  months 
were  stated.  The  court  held  the  claim  to  be  defective, 
and  expressed  similar  views,  as  to  the  necessity  of  a 

1  Witman  v.  Walker,  9  W.  &  S.  186. 


THE  CLAIM.  231 

substantial  compliance  with  the  requisitions  of  the 
Act,  and  the  materiality  of  such  an  omission/ 

In  a  case  of  Noll  v.  Swineford,  the  claim  was  de- 
fective, on  other  grounds;  but  the  matter  of  time  was, 
also,  involved  in  the  decision.  In  that  case,  no  bill 
was  attached,  but  the  claim  set  forth  the  sum  claimed 
as  due  "for  carpenter's  work  and  labour  done  and  per- 
formed in  and  about  the  erection  of  said  building,  as 
a  carpenter,  and  for  materials,  to  wit: — lumber  fur- 
nished by  the  said  Harry  Noll,  between  the  29th  day 
of  June,  1843,  and  the  23d  day  of  February,  1844,"  &c. 
The  opinion  of  the  court  was  delivered  b}^  Bell,  J., 
who  says: — "Another  exception  is  taken  to  the  valid- 
ity of  the  claim  filed  here;  namelj^,  that  it  does  not 
show  the  time  when  the  alleged  work  was  done,  which 
is  essential  under  the  statute :  Relirer  v.  Zeigler,  supra. 
Were  it  necessary,  this  objection  would  be  well  worthy 
of  consideration ;  and,  for  myself,  I  may  say,  I  do  not 
perceive  how  it  could  well  be  answered.  It  is,  to  be 
sure,  urged,  that  the  dates  stated  under  the  videlicit 
refer,  as  well  to  the  work,  as  to  the  lumber  furnished. 
It  seems  to  me  it  is  difficult  so  to  read  it,  without  doing 
violence  to  the  grammatical  construction,  as  well  as 
to  the  plain  meaning  of  the  sentence.  Were  this  even 
conceded  to  be  doubtful,  it  might  be  sufficient  to  say, 
the  very  concession  proves  the  statement  lacks,  in  this 
particular,  that  degree  of  certainty  which  ought  to  bo 
exacted,  and  which  it  is  so  easy  to  confer  on  these 
papers."  ^ 

1  Ilcbrer  v.  Zeigler,  .'}  W.  &  S.  258.  '  G  B.  187. 


232  THE  CLAIM. 

This  is  the  last  of  the  decisions  of  the  Supreme 
Court,  upon  this  subject,  holding  the  mechanic  to  the 
suljstantial  requirements  of  the  Act.  From  its  date, 
indulgence  to  that  class  of  creditors  began  to  be  ex- 
tended, and  has  now  gone  so  far,  as,  in  fact,  to  nullify 
the  enactments  upon  this  subject. 

We  do  not  include  among  the  cases  which  we  are 
about  to  mention  that  of  Shaw  r.  Barnes,  which  was 
decided  prior  to  the  case  of  Noll  v.  Swineford,  but  is 
not  even  noticed  by  the  judge  who  decided  the  latter 
case.  It  was  a  direct  overruling  of  the  prior  decisions 
to  which  we  have  referred.  But  it  can,  hardly,  be 
treated  as  authority,  though  it  was,  several  times,  af- 
terward, cited  as  such,  by  the  judge,  himself,  who  there 
delivered  the  opinion  of  the  court.  He  distinctly  inti- 
mates, however,  that  upon  a  motion  to  strike  the  claim 
from  the  record,  his  views,  as  to  its  validity,  might  have 
been  different,  and,  that  he  gets  over  technical  objec- 
tions, in  order  not  to  disturb  the  result  of  a  trial  on 
the  merits,  which  had  taken  place.^ 

The  same  remarks,  perhaps,  might,  properly,  be 
made,  with  reference  to  Bayer  v.  Reeside,  in  which 
the  opinion  of  the  court  was  delivered  by  the  same 
judge  who  delivered  it  in  Shaw  v.  Barnes,  and  who, 
again,  expressly  declared,  that  his  opinion  was  affect- 
ed by  the  fact,  that  no  motion  to  strike  off  the  claim 
had  been  made,  and,  that  the  case  was  before  him 
after  a  trial  on  the  merits.^ 

But  we  come  to  others  that  are,  perhaps,  of  more 
authority. 

^  5  B.  18.  2  2  H.  168. 


THE  CLAIM.  233 

In  Knabb's  Appeal  the  bill  annexed  to  the  claim  was 
as  follows :  "  Nov.  15, 1846.  To  serving  63,200  bricks, 
at  ^bi  per  thousand,  |347,00."  The  Judge  who  de- 
livered the  opinion  of  the  Court,  says:  "That  fur- 
nished by  Bean  &  Ullman  has  but  one  date.  But, 
in  the  absence  of  contrary  proof,  they  must  be  taken 
as  designating  the  time  v/hen  the  bricks  were  fur- 
nished. It  is  totally  unlike  the  appended  bill  in 
Witman  v.  Walker,  9  W.  &  S.  183.  There,  the  ac- 
count consisted  of  various  items  of  marble  furnished 
for  the  building:  such  as  mantles,  steps,  ashler,  &c., 
and  of  marble  work,  which  must  have  been  furnished 
and  performed  at  different  times;  and  yet,  there  was 
but  a  single  date.  'It  is  obvious,'  said  Judge  Ser- 
geant, 'the  date  is  the  date  of  the  bill,  and  nothing 
else.'  But  this  cannot,  certainly,  be  asserted  of  the 
present  account.  It  consists  of  but  one  item :  and, 
though  not  very  probable,  it  is  possible,  the  bricks 
may  all  have  been  furnished  on  the  same  day.  Of 
this,  the  only  evidence  we  have,  is  the  bill  itself,  and 
it  would  be  hazardous  to  assume  a  fact  in  contradic- 
tion of  it,  for  the  mere  purpose  of  invalidating  the 
lien.  Besides,  it  is  said  to  be  the  habit  of  the  trade, 
to  ascertain  the  number  of  bricks  furnished  for  a 
building,  after  it  is  completed,  and,  then,  to  make  the 
final  charge.  If  so,  I  should  think  the  Act  satisfied 
by  the  insertion  of  that  date."^ 

In  a  still  later  case,  the  same  judge  who  gave  the 
opinion  of  the  Court  in  Witman  v.  Walker,  and  in 

»  10  B.  186. 


234  THE  CLAIM. 

Knabb's  Appeal,  pursuing,  still  further,  the  more  le- 
nient views  of  the  latter  case,  held  a  claim  good,  where 
the  bill  annexed  was  in  the  following  form:  "to 
16,83G  bricks,  at  §3,94  per  1000,  the  last  of  which 
were  furnished  June  3,  1847,  $65,99."  Those  who 
desire  to  examine  the  lapses  of  the  court  from  its  ori- 
ginal position,  will  not  object  to  the  space  taken  by  the 
remarks,  in  this  decision,  upon  this  subject.  The  court 
say:  "  Certainty  to  a  common  intent  is  all  that  is  called 
for,  and  this  is  satisfied,  if  those  interested  may  ascer- 
tain the  period  during  which  the  delivery  of  the  ma- 
terials was  efTected,  or  the  work  was  done,  so  as  to  in- 
dividuate the  transaction.  In  the  case  last  cited, 
where,  as  here,  the  claim  was  for  bricks  furnished  in 
the  construction  of  a  building,  but  a  single  date  was 
given,  and  this  was  ruled  to  be  sufficient;  more  espe- 
cially, as  among  brickmakers,  the  habit  is  said  to  be, 
to  make  the  final  charge,  after  all  the  necessary  bricks 
are  furnished.  In  the  instance  before  us,  it  appears 
to  me,  the  claim  filed  is  still  more  precise  and  satis- 
factory, in  the  particular  under  consideration.  The 
date  upon  which  the  last  delivery  of  bricks  took  place, 
is  given,  to  wit;  June  3d,  1847,  and  it  is  averred  the 
whole  number  was  furnished  within  six  months  prior 
to  November  6th,  1847,  the  date  of  the  claim  filed.  It 
results,  necessarily,  that  the  materials  here  sued  for 
must  have  been  furnished  between  the  Gth  of  May  and 
the  3d  of  June,  1847.  Now,  surely,  under  the  authori- 
ties I  have  referred  to,  this  is  sufficiently  certain ;  and, 
particularly,  when  it  is  recollected,  those  who  provide 
bricks  for  structures  in  process  of  erection,  do  not,  ge- 


THE  CLAIM.  230 

nerally,  charge  each  load  despatched  to  the  building, 
with  the  date  when  it  was  sent.  It  has  been  more 
than  once  said,  we  must  not  be  hypercritical,  when 
scanning  this  species  of  lien,  and  estimating  its  suffi- 
ciency. Such  a  practice  must,  necessarily,  defeat  a 
very  large  majority  of  them;  a  result  not  to  be  desired, 
where  they  furnish  sufficient  data  to  enable  the  parties 
subject  to  them,  to  ascertain  all  that  is  essential  for 
them  to  know.  Both  upon  authority  and  principle, 
then,  we  conceive  the  claim  in  dispute,  here,  well 
enough  ascertains  the  time  of  delivery."  -^ 

There  is  a  class  of  cases  the  doctrine  of  which  is  of 
modern  growth,  but  which,  perhaps,  do  not  so  directly 
conflict  with  the  earlier  decisions.  They  are  cases  in 
which  the  claimant  has  been  allowed  to  state  that  the 
Avork  had  been  done,  or  materials  furnished,  between 
two  specified  days,  sometimes  separated  from  each 
other  by  a  long  interval. 

In  cases  of  a  contract,  for  the  doing  work  or  furnish- 
ing materials,  in  gross,  these  decisions  might  be  sus- 
tained. But,  where  the  work  was  done,  or  materials 
furnished,  without  contract,  it  would  appear  as  if  the 
usual  words  "within  six  months  last  past,"  were  as 
satisfactory  as  the  two  dates  which  have  been  held 
sufficient. 

In  Ilichabaugh  v.  Dugan,  a  claim  for  "painting 
done  in  and  about  the  erection  and  construction  of 
the  fe'aid  building,  and  the  necessary  materials  provided 


'  Calhoun  v.  Mabon,  2  II.  58.     Sec,  also,  Donahoo  v.  Scott,  2  J. 
47.  '^ 


23G  THE  CLAIM. 

therefor,  from  the  1st  of  April,  1842,  to  the  1st  of 
October,  1842,  and  within  six  months  last  past,"  was 
hckl  sufficient.  And  similar  claims  have  been  sus- 
tained in  other  instances,^ 

If  these  cases  are,  still,  of  authority,  it  would  seem 
proper,  at  least,  since  the  Act  of  April  16th,  1845, 
that,  wherever  the  first  of  the  two  dates  fixed  is  more 
than  six  months  prior  to  the  time  of  fihng  the  claim, 
the  claim  should  set  forth,  that  the  work  w^as  done,  or 
the  materials  furnished  "continuous!}","  during  the 
periods  mentioned. 

The  Act  of  March  24th,  1840,  should,  also,  be  re- 
membered in  this  connexion,  which,  after  allowing  both 
work  and  materials  to  be  included  in  the  same  claim, 
further  enacts,  that  "w'here  the  value  or  amount  of 
the  work  or  materials  can  only  be  ascertained  by 
measurement,  when  done,  or  shall  be  done  by  con- 
tract, for  a  stipulated  sum,  it  shall  be  lawful  to  file 
a  statement  of  the  time  when  the  work  was  com- 
menced, and  when  finished,  and  of  the  aggregate  price 
of  the  work  and  materials."  This  Act  applies,  only, 
to  the  city  and  county  of  Philadelphia,  and  the  county 
of  Chester. 

In  a  case  in  wdiich  a  wrong  date,  which  was,  in 
fact,  an  impossible  date,  was,  by  mistake,  inserted  in 
the  bill  accompanying  the  claim,  the  court  held,  that  it 
might  be  sustained  if  parol  proof  w^ere  given  of  the 
correct  date.^ 

1  7  B.  394.  Bayer  v.  Rceside,  2  II.  167.  Hill  v.  M'Dowell,  2 
H.  175.     Driesbach  v.  Keller,  2  B.  77. 

2  Hillary  v.  Pollock,  1  H.  186. 


THE  CLAIM.  237 

Tlie  sufficiency  of  tlie  claim,  however,  with  respect 
to  the  question,  whether  the  "  amount  or  sum  chiimed 
to  be  due,  and  the  nature  or  kind  of  the  work  done, 
or  the  kind  and  amount  of  materials  furnished,  and 
the  names,"  &c.,  are  properly  set  forth,  has  been  com- 
plicated with  another  question,  namely,  whether  there 
has  been  a  special  contract  or  not. 

In  Jones  v.  Shawan,  it  was  objected,  that  it  was  a 
claim  for  both  work  and  materials,  and  that,  though  it 
appeared  b}^  the  claim,  that  the  work  was  not  finished 
till  within  six  months  before  the  claim  was  filed,  yet 
it  did  not  therein  appear,  that  the  materials  were  fur- 
nished within  that  time.  The  court  sustain  the  claim, 
however,  and  say :  "  But  the  plaintiffs  by  one  contract 
agreed  to  furnish  materials  and  do  the  work ;  and,  if 
you  believe  the  witnesses,  the  very  last  things  done, 
were  hanging  doors,  putting  on  hinges  and  locks,  &c.; 
so  that  the  furnishing  materials  was  contemporaneous 
with  doing  the  work,  and  was  not  ended  till  the  com- 
pletion of  the  work."  ^ 

In  a  subsequent  case,  the  claim  stated,  that  the  con- 
tract for  the  workmanship  of  the  building  was  made 
between  the  parties  "on  or  about  the  16th  of  April, 
1841,  at  Tobehanna  Township,  Monroe  county,  afore- 
said ;  and  said  work  and  labour  were  done  between  the 
said  IGth  of  April,  1841,  and  the  29th  of  August, 
1841."     It  was  held  sufficient." 

In  a  case  of  the  Court  of  Common  Pleas  of  Lancas- 
ter county,  it  is  said;  "An  objection  has  been  taken  to 


1  4  ^y.  &  S.  259.  *  Dricsbacb  v.  Kollcr,  2  13.  77, 


238  THE  CLAIM. 

the  lien  claimed  by  Israel  Cooper,"  for  work  done  and 
lumber  furnished,  'per  agreement.'  The  first  inclina- 
tion of  the  Court  was,  that  the  lumber  furnished  and 
the  carpenter's  work  done,  for  a  house,  could  not  be 
intended  to  have  been  furnished  and  performed,  in  one 
day,  the  day  on  which  the  claim  is  dated.  But,  on 
further  reflection,  it  seems  to  the  court,  that  where  the 
articles  are  furnished  and  work  done  for  a  building,  in 
pursuance  of  an  agreement  to  furnish  all  the  lumber 
and  perform  all  the  carpenter  work  for  a  building,  the 
lien  cannot,  properly,  be  filed,  until  the  claimant  is  in  a 
situation  to  maintain  an  action,  or,  at  least,  until  he  is 
in  a  condition  to  aver  entire  performance  of  his  agree- 
ment. That  is,  where  he  has  done  all  the  work  and  fur- 
nished all  the  materials  required  by  the  contract.  The 
limitation  of  six  months  would  not  begin  to  run  until 
that  time.  The  claim  may  be  dated  and  filed  on  the 
day  the  contract  is  executed  by  the  claimant.  The 
claim  may,  therefore,  in  this  instance,  be  considered 
as  stating,  that  the  work  was  done  and  materials  fur- 
nished on  the  day  it  bears  date,  to  wit,  the  26tli  Fe- 
bruary, 1841."  1 

In  a  still  later  case,  the  court  say,  upon  this  sub- 
ject: "Here  the  contract  was  to  do  all  the  work,  and 
finish  and  complete  four  frame  houses,  which  were 
very  minutely  described,  in  the  contract.  A  mechanic 
who  makes  such  a  contract,  and  completes  it,  seldom 
keeps  an  account  of  every  portion  of  the  materials  he 
uses,  or  the  work  he  does;  nor  is  there  any  occasion 

^  Shaffer  v.  Hull,  3  Pa.  L.  J.  321. 


THE  CLAIM.  239 

for  it.  He  is  to  complete  the  houses  according  to  his 
contract,  and  he  is  to  be  paid  a  stipulated  sum.  In 
this  case,  it  is  of  no  consequence,  either  to  the  owner 
or  the  public,  that  he  should  state  the  number  of  cubic 
yards  dug  for  the  cellar,  the  number  of  perches  of  stone 
built,  or  the  quantity  of  boards  used.  He  states  what 
is  equally  useful,  under  the  words  of  the  Act,  his  con- 
tract. We  see  no  valid  objection  to  this  lien,  looking 
to  the  explanatory  Act  of  the  legislature."  ^ 

We  ought  to  mention,  in  this  connexion,  the  case  of 
EUice  V,  Paul,  in  the  District  Court  for  the  city  and 
county  of  Philadelphia,  in  which  the  work  and  mate- 
rials were  alleged  to  have  been  done  and  furnished  by 
contract,  and  the  only  mention  of  time  was  in  the 
w^ords,  "  within  six  months  last  past,"  there  being  no 
date,  except  the  date  at  the  foot  of  the  claim,  under 
the  name  of  the  attorney.  This  date  was  December 
2d;  the  claim  was  filed  December  9th.  The  court 
held  the  claim  defective,  because  the  Act  required  the 
claim  to  be  filed  within  six  months  after  the  work 
was  done,  or  materials  furnished;  while  the  claim  in 
question  did  not  show,  that  they  had  been  done  or 
furnished,  within  six  months  from  the  time  of  filing, 
but  only  within  that  period  from  the  date  under  the 
attorney's  name.^ 

It  has  been  held,  that,  where  there  is  a  special  con- 
tract, it  need  not  ]jc  referred  to,  expressly,  in  the  claim.^ 


'  Young  V.  Lyman,  9  B.  450.     Sec,  also,  Stiles  v.  Learning,  7  Leg. 
Int.  19.     Ilaincs  v.  Burr,  id.  54. 

^  13  Leg.  Int.  124.  »  O'Brien  v.  Logan,  9  B.  99.   — 


240  THE  CLAIM. 

The  next  point  to  be  considered,  is  the  meaning  of 
the  clause,  "The  locality  of  the  building,  and  the  size 
and  number  of  the  stories  of  the  same,  or  such  other 
matter  of  description  as  shall  be  sufficient  to  identify 
the  same." 

In  regard  to  the  description  of  the  building,  the 
courts  have  been  very  indulgent.  That  the  looseness 
allowed,  in  this  respect,  has  been  wise,  with  reference 
to  purchasers  and  lien  creditors,  is,  by  no  means,  cer- 
tain. 

In  Witman  v.  "Walker,  the  court,  in  speaking  of  the 
last  words  of  the  clause  just  mentioned,  consider  them 
as  giving  a  latitude,  in  this  part  of  the  claim,  which 
was  not  conceded  to  the  other  statements  which  were 
required. 

It  has  never  been  held,  that  a  description  of  the 
premises  by  feet  and  inches,  boundaries  and  extent, 
was  necessary.  It  would,  however,  be  much  better, 
that  this  should  be  found  in  the  claim,  when  cer- 
tainty can  be  reached.  In  cases  in  which  a  party  has 
availed  himself  of  the  mode  pointed  out  by  the  Act  of 
183G,  for  designating  boundaries,  there  can  be  no  dif- 
ficulty or  danger.  Nor  is  it  probable,  that  there  will 
be,  in  other  cases.  If  the  claim  includes  too  little,  in- 
deed, the  lien  will  be  confined  to  the  description.^  But 
if  it  includes  too  much  it  would  be  sustained,  no  doubt, 
to  the  extent  that  is  proper. 

In  the  city  there  will  be  less  danger,  than  in  the 
country,  in  hazarding  an  opinion,  in  regard  to  the  ex- 

^  M'Donald  v.  Lindall,  3  R.  493. 


THE  CLAIM.  241 

tent  of  the  ground,  which  the  lien  affects.  But 
care  should  always  be  had,  that  no  less  is  included 
than  will  be  necessary.  The  only  aid  we  can  give 
will  be  found  in  the  cases  which  we  have  heretofore 
referred  to,  under  another  head.^  If  no  objection  be 
made,  a  judgment  may,  perhaps,  conclude  the  parties, 
in  this  respect,  which  will,  of  course,  not  be  the  cas6, 
where  there  is  no  description.  If  objection  be  made, 
it  would  seem,  that  a  jury  is  the  proper  tribunal  to  de- 
cide the  question.'^ 

In  respect  to  the  "locality  of  the  building,"  extreme 
indulgence  has  been  extended  to  this  class  of  creditors. 

In  Harker  v.  Conrad,  a  claim  filed  against '"'  a  three 
storied  brick  house,  situate  on  the  south  side  of  Wal- 
nut street,  between  Eleventh  and  Twelfth  streets,  in 
the  city  of  Philadelphia,"  was  hold  to  be  sufficient, 
though  Quince  street  intervened,  between  Eleventh 
and  Twelfth  streets."^ 

In  another  case,  a  claim  filed  against  premises  "on 
the  west  side  of  13th  street,  between  Vine  and  James 
streets,  was  sustained,  though  there,  also,  a  third  street 
intervened.*  In  another,  a  description  of  premises, 
"as  on  the  north  side  of  Lombard  street,  west  of 
Ninth  street,  adjoining  Stephen  Smith's  lot,  on  the 
East,"  was  declared  to  be  specific  enough.'' 

In  all  these  cases,  however,  the  court  required  the 
name  of  the  owner  to  l)e  mentioned  in  the  claim,  and 


^  See  ajite,  p.  135,  et  acq.       '-'  Kcppcl  v.  Jackson,  8  W.  k  S.  320. 
3  12  S.  &  K.  301.  *  Springer  v.  Kcy.sor,  G  Wli.  187. 

*  Shaw  V.  Barnes,  5  1>.  20. 

IG 


242  THE  CLAIM. 

proof,  upon  the  trial,  that  he  owned  no  other  premises 
within  the  description. 

And  in  a  case  of  a  description  somewhat  similar, 
where  the  name  of  the  owner  was  not  mentioned,  and 
there  was  no  proof,  that  he  owned  no  other  property 
in  the  neighhourhood,  the  plaintiff  failed  to  recover.^ 

These  cases  arose  with  reference  to  buildings  with- 
in a  city.  But  we  are  not  without  others,  which  tend 
to  the  same  result,  with  reference  to  houses  in  the 
country. 

In  a  case  in  the  Court  of  Common  Pleas  of  Lancas- 
ter county,  a  claim  was  sustained  which  described  the 
l)remises  as  "in  Dillersville,  adjoining  lands  of  Peter 
Hentz,  and  the  Pennsylvania  Rail  Pioad."  -  In  another 
case,  in  the  Supreme  Court,  the  claim  was  against  pre- 
mises "in  Upper  Providence  Township,  Montgomery 
county,  Penns3'lvania,  belonging  to  Joseph  M.  Harper, 
bounded  by  land  of  Jacob  Landis  and  others,"  and 
it  was  sustained." 

The  same  particularity  in  naming  the  owner,  and 
in  proving  that  he  owned  no  other  premises  which 
could  be  mistaken  for  those  intended,  was  required 
in  these  latter  cases,  as  in  those  first  referred  to. 

The  reasons  given  in  these  opinions  for  the  great 
latitude  which  they  allow  are,  generally,  the  loose 
language  of  this  part  of  the  Act,  the  merits  of  the 
classes  favoured  by  the  law,  and  the  sufficiency,  in  each 
case,  of  the  description  given,  to  prevent  any  one  from 
being  misled,  by,  at  least,  putting  him  on  inquiry. 

'  Hill's  Est.  3  Pa.  L.  J.  323.         '  Shaffer  v.  Hull,  3  Pa.  L.  J.  321. 
'  Knabb's  Ap.  10  B.  187. 


THE  CLAIM.  243 

But,  even  with  all  this  tendency  to  license  and  in- 
dulgence, claims  have  been  found  insufficient,  in  this 
respect. 

In  Washburn  v.  Eussell,  the  claim  was  against  "a, 
tract  of  land  in  Clarion  county,  on  the  waters  of  the 
Clarion  river,  with  one  double  saw  mill  thereon,  situ- 
ate on  the  East  side  of  said  river."  It  was  held  to  be 
fatally  defective, — too  vague  to  be  helped  by  proof. 

The  Court  say : — "  Had  the  waters  not  been  men- 
tioned, the  mill  would  have  appeared  to  be  simply  on 
the  East  side  of  the  river;  and  the  case  would  have 
been  more  nearly  assimilated  to  Harker  v.  Conrad, 
and  Springer  v.  Keyser;  yet  it  is  difficult  to  say,  that 
the  description  would  have  been  certain  enough,  even 
then;  though  there  had  been  no  other  double  saw  mill 
to  which  it  could  have  been  applied.  The  office  of 
the  description  is  to  give  notice  to  purchasers,  and, 
perhaps,  creditors,  who  are  surely  not  expected  to 
explore  the  course  of  a  river,  in  order  to  discover,  whe- 
ther the  particular  property  were  intended.  But  this 
description  is,  in  its  actual  form,  much  more  vague. 
The  waters  of  a  river  embrace  a  wide  spope  of  terri- 
tory; in  this  instance,  the  whole  of  the  country;  and 
the  description  is  not  more  precise,  than  it  would 
have  been,  had  it  contained  no  reference  to  the  river 
or  its  tributaries.  Would  it  be  enough  to  state,  that 
the  building  is  in  a  particular  county  ?  Yet,  in  effect, 
no  more  was  done,  in  this  instance.  It  strikes  us,  at 
a  glance,  that  such  is  not  the  description  required  hy 
the  statute."  ^ 

» 1  B.  499. 


244  THE  CLAIM. 

In  some  cases,  also,  where  the  description  has  not 
only  been  loose,  but  actually  erroneous,  the  court  has 
decided  against  the  claim. 

Yfliere  a  house  was  described  as  "situate  in  Clinton 
street  on  the  north  side  thereof,  and  130  feet  east  of 
Eleventh  street,  containing  in  front  on  Clinton  street 
20  feet,"  and  it,  in  fact,  began  at  the  distance  of  116 
feet  east  of  Eleventh  street,  the  claim  was,  indeed, 
held  sufficient.^ 

But,  in  a  later  case,  where  an  ejectment  was  brought 
for  a  house  on  the  South  side  of  Pine  street,  between 
xsiuth  and  Tenth  streets,  and  the  plaintiff  claimed  under 
proceedings,  under  a  mechanic's  lien,  against  a  house 
on  the  south  side  of  Tenth  street,  below  Pine,  the 
court  refused  to  hear  proof,  that  they  were,  in  fact,  the 
sarae.^ 

With  reference  to  the  description  of  "the  size  and 
number  of  the  stories,"  we  get  but  little  light  from  the 
cases. 

In  one  of  those  to  which  we  have  just  referred,  the 
building  was  described  as  a  "  double  saw  mill,"  no 
mention  being  made  of  the  number  of  stories.  The 
court  say :  "  A  saw  mill  seldom,  perhaps  never,  con- 
sists of  more  than  one  storj^,  and  it  was,  therefore,  un- 
necessary to  do  more,  in  the  way  of  description,  by 
structure,  than  to  advert  to  another  circumstance  as 
a  substitute  for  the  number  of  stories;  by  stating,  that 
the  mill  was  a  double  one."  ^ 


"■  EwiDg  V.  Barras,  4  W.  &  S.  468. 

*  Simpson  v.  Murray,  2  B.  76.       ^  "Washburn  v.  Russell,  1  B.  499. 


THE  CLAIM.  245 

In  Shaw  v.  Barnes,  the  number  of  stories  of  a  dwell- 
ing was  omitted,  but  the  claim  was  sustained/ 

We  find  no  cases  in  which  the  question  has  arisen, 
whether  it  is  necessary  to  describe  the  building  by  its 
character  or  object,  as  a  dwelling-house,  a  church,  a 
barn,  &c. 

In  Barclay's  Appeal,  a  claim  was  filed  against  a 
building,  with  the  "appurtenances."  The  court  held 
it  bad,  and  say: — '"'But  an  appurtenance  maybe  a 
yard,  an  alley,  a  cistern,  a  conduit  pipe,  an  ice-house, 
a  smoke-house,  a  privy,  a  stable,  or  other  out-house, 
distinct  from  the  principal  building  mentioned  in  this 
written  claim,  and,  consequently,  not  within  the  pur- 
view of  the  lien  laws.  It  is  incumbent  on  the  me- 
chanic or  material  man  to  bring  himself  within  the 
statute,  and  to  show  title,  affirmatively,  on  the  face  of 
the  registry;  and  not  for  antagonist  creditors  to  show 
the  reverse."  ^ 

But,  in  a  later  case,  in  the  District  Court  for  the  city 
and  county  of  Philadelphia,  the  same  word,  "appurte- 
nance," was  used,  but  another  part  of  the  claim  showed 
that  it  was  an  ice-house  that  was  intended.  And  the 
court,  without  disturbing  the  doctrine  of  Barclay's 
Appeal,  held,  that  though  such  a  building  might  not, 
if  it  were  distinct  from  the  main  building,  be  within 
the  purview  of  the  lien  law,  it  would  be  if  it  were  at- 
tached to  and  formed  a  part  of  the  main  building;  audi 
that  proof  might  be  given  at  the  trial  upon  that  poii^t.^ 

1  5  B.  20.  ■'  1  II.  490. 

=■  Killingworth  v.  Allen,  8  Leg.  Int.  120.  And  see  Odd  Fellows' 
Hall  V.  Masser,  12  II.  510. 


246  THE  CLAIM. 

We  have,  in  an  earlier  part  of  the  volume,  com- 
mented on  these  cases,  in  another  of  their  aspects. 
We  refer  to  them,  in  this  connexion,  as  suggesting 
one  reason,  at  least,  ^yhy  it  may  be  best  to  state  the 
nature  of  the  building  and  its  use. 

In  the  case  last  referred  to,  it  was  held,  in  respect 
to  the  description  of  the  building,  as  it  had,  before, 
been  held,  in  reference  to  the  statements  as  to  the 
work  and  materials,  that  the  body  of  the  claim  might 
be  aided  by  a  bill  annexed.  And,  in  a  much  earlier 
case,  it  seems  to  have  been  held,  that  a  plan  might  be 
referred  to,  if  it  were  filed. ^ 

It  has  not  been  clearly  decided,  whether  the  claim 
must  allege  a  credit  to  the  building.  It  has  been  held, 
however,  that  it  need  not  state,  in  the  precise  words 
of  the  Act,  that  the  work  was  done  or  materials  fur- 
nished, "for  or  about  the  erection  or  construction  of 
the  building."^ 

A  claim  signed  by  counsel  was  sustained,  where  au- 
thority was  shown. ^ 

A  claim  when  filed,  is  not  a  record.  It  resembles, 
very  much,  in  its  character,  the  registry  of  a  mortgage.* 
If  it  be  defective,  the  filing  of  it  does  not  exhaust  or 
affect  the  lien,  which  exists,  independently  of  it,  until 
the  six  months  have  expired.^  A  second,  third  or  fourth 
claim  may  be  filed;  and  no  prior  one  can  be  pleaded 


»  M'Donald  v.  Lindall,  3  R.  493.         =  Kelly  v.  Brown,  8  H.  446. 
'  Dnnahoo  v.  Scott,  2  J.  45. 

*  Davis  V.  Church,  1  W.  &  S.  240.    See  Lauman's  Ap.  8  B.  478. 

*  Bournonville  v.  Goodall,  10  B.  133.     Chambers  v.  Yarnall,  3 
H.  2G5. 


THE  CLAIM.  247 

against  the  last.  In  a  late  decision,  tlie  court  say : 
"  Nor,  is  there  any  thing  m  the  suggestion,  that  the 
means  of  enforcing  the  lien  given  to  mechanics  and 
material  men  by  the  Act  of  1836,  are  exhausted  in 
an  abortive  attempt  to  pursue  the  directions  of  the 
statute,  by  filing  the  claim  within  six  months.  This 
is  but  the  mode  of  giving  it  fruitful  effect;  and,  should 
it  fail,  from  some  technical,  or  even  substantial  defect, 
the  lien  is  no  more  destroyed,  than  would  be  a  bond, 
sued  out  by  an  improper  or  inapplicable  writ.  The 
claim  still  remains,  and  so  does  the  lien,  until  barred 
by  the  lapse  of  six  months  after  the  work  finished  or 
materials  furnished.  The  mistake  originated  in  con- 
founding the  lien,  which  derives  its  vitality  altogether 
from  tiie  statute,  independently  of  any  recent  entry, 
with  the  remedy,  which,  to  be  sure,  must  be  com- 
menced within  the  six  months.  But,  within  that 
period,  it  may  be  renewed  as  often  as  the  exigencies 
of  the  claimant's  case  may  demand.  In  this  respect, 
it  is  precisely  like  an  action  by  writ,  always  open  to 
the  party,  until  barred  by  the  statute  of  limitations, 
or  an  adjudication  upon  merits.  To  hold  otherwise, 
might  be  attended,  not  only,  by  inconvenience,  but 
gross  injustice, — a  hazard  wlrich  no  analogy  in  the 
law  calls  upon  us  to  encounter,  and  against  which  we 
are  admonished,  by  the  frequent  failure  of  these  re- 
corded claims,  upon  merely  formal  grounds,  or  because 
of  a  want  of  the  due  observance  of  the  statutory  re- 
quisitions. A  guard  against  the  abuse  of  the  right 
will  be  found  in  the  costs  attendant  upon  its  exercise, 


248  THE  CLAIM. 

or,  if  malice  be  present,  in  the  remedy  afforded  by  the 
law  in  such  cases."  ^ 

A  claim  cannot  be  amended.  If  the  time  for  filing 
it  has  not  expired,  a  second  may  be  filed;  but,  if  it 
has,  there  is  no  remedy.^ 

The  danger  of  allowing  an  amendment  is  apparent. 
There  would  be  no  safety  for  purchasers  or  lien  cre- 
ditors. Misled  by  a  false  description  or  defective 
statement  in  a  claim,  to  disregard  it  and  spend  money 
on  the  faith  of  a  supposed  freedom  of  property  from 
incumbrance,  they  would  be  surprised  by  a  sudden 
restoration  of  the  lien. 

We  have  already  referred  to  the  time  within  which 
the  claim  must  be  filed,  in  order  to  continue  the  lien." 


1  Bournonville  v.  Goodall,  lO  B.  133. 

'  Hill  V.  3I'Dowell,  7  Leg.  Int.  179.     Ilavilknd  v.  Pratt,  9  id.  98. 

^  Ante,  p.  181,  et  scq. 


JOINT,  APPORTIONED  CLAIMS.  249 


CHAPTER   V. 

OF   JOINT,    APPORTIONED    CLAIMS. 

There  is  a  species  of  claim,  of  much  importance, 
which  has  so  many  and  such  important  peculiarities, 
that  it  is  proper  to  treat  it  separately. 

It  was  held,  in  one  of  the  earlier  cases,  that,  under 
the  Act  of  ]  808,  a  claim  could  not  be  filed  against  two 
adjoining  houses,  owned  by  different  persons,  for  ma- 
terials furnished  to  them  indiscriminately.  The  court, 
however,  expressly  refrained  from  giving  an  opinion, 
as  to  a  case  in  which  the  houses  were  all  owned  by 
one  person.^ 

It  appears,  however,  to  have  been  decided  by  the 
District  Court,  for  the  city  and  county  of  Philadelphia, 
that  a  joint  claim  could  not  be  filed,  even  where  the 
houses  were  owned  by  the  same  person.^ 

In  a  subsequent  case,  however,  the  court  held,  that 
a  claim  for  work  done,  and  materials  furnished,  under 
a  general  request,  and  without  any  specific  contract, 
might  be  filed  against  several  houses  jointly,  when 
they  were  owned  by  the  same  person;  or,  that  the 
claimant  might  apportion  the  amount  among  them, 


^  Gorgaa  v.  Douglas,  G  S.  &  11.  512.     Thompson  v.  "Wiinl,  Wb. 
Dig.  5  Ed.  pi.  151. 
*  Atkinson  v.  Graves,  Wli.  Dig.  5  Ed.  pi.  143. 


250  OF  JOINT,  APPORTIONED  CLADIS. 

according  to  the  value,  or  price  of  tlie  materials  or 
work,  and  fde  a  separate  claim  against  each.  The 
court  say: — "So,  I,  also,  think,  that,  where  the  lum- 
ber merchant  furnishes  materials  for,  or  the  mechanic 
does  work,  in  the  construction  of,  two  or  more  con- 
tiguous houses,  belonging  to  the  same  person,  under 
a  general  request,  without  any  specific  contract  for 
each  house,  separately,  that  he  may  under  the  Acts 
of  Assembly,  either  file  his  claim  for  the  amount 
against  all  the  houses  jointly,  or  he  may  apportion  it 
among  tliem,  according  to  the  value  or  price  of  the 
materials  furnished,  or  the  work  done  to  each;  and 
file  his  claim,  accordingly,  against  each  house,  sepa- 
rately, and  thus,  continue  his  lien,  in  either  form. 

"There  being  nothing,  then,  as  I  conceive,  in  the 
Acts  of  Assembly,  which  restrains  the  parties  from  in- 
cluding, in  the  same  contract,  materials  for,  and  the 
work  of  as  many  contiguous  houses  as  they  please,  it 
would  seem  to  follow,  that  the  nature  and  terms  of  it, 
together  with  the  work  done  under  it,  ought  to  regu- 
late the  operation  and  extent  of  the  lien.  Hence,  it 
would  extend  itself  to  all  the  houses  or  buildings, 
actually  commenced,  for  Vvdiicli  the  materials  were 
furnished,  or  work  done,  under  the  same  contract,  and 
would  become  a  joint  lien  for  the  whole  amount  of 
the  debt,  commencing  on  each  house  with  the  com- 
mencement of  the  building  thereof.  This  appears  to 
be,  not  only,  the  most  obvious  as  well  as  safe  and  cer- 
tain rule  or  guide,  by  which  the  nature  and  the  extent 
of  the  liens  of  material  men  and  mechanics  may  be 
determined,  but  the  best  suited  to  give  to  those  per- 


JOINT,  APPORTIONED  CLAIMS.  251 

sons  that  degree  of  security  for  the  payment  of  their 
respective  debts,  Avhich  was  intended  by  the  legislature. 
In  its  operation  and  effect,  it  may  be  fairly  likened  to 
the  lien  of  a  mortgage  given  to  secure  the  repayment 
of  money  borrowed,  upon  a  number  of  different  tracts 
of  land,  say,  eighteen,  in  all,  lying  in  as  many  diffe- 
rent counties  of  the  State.  The  lien  under  it  would 
commence,  and  the  whole  amount  of  the  debt  become 
a  charge  upon  each  tract,  from  the  date  of  the  record- 
ing of  the  mortgage,  in  the  county  in  which  each  tract 
was  situated;  and,  as  it  would,  scarcely,  be  practicable 
to  have  the  mortgage  recorded  in  any  two  of  the  coun- 
ties, on  the  same  day,  the  date  of  its  lien,  on  each  tract 
of  land,  would  vary,  accordingly;  but,  as  soon  as  re- 
corded, in  all  the  counties,  the  mortgage  debt  would 
become  a  joint  lien,  upon  all  the  eighteen  tracts  of  land 
embraced  in  the  mortgage.  And  if,  in  such  case,  af- 
terwards, while  other  liens  existed  on  the  mortgaged 
lands,  some  of  prior,  some  of  even,  and  others  of  sub- 
sequent date  to  that  of  the  mortgage  lien,  a  judicial 
sale  were  to  be  made  of  all  the  lands,  under  a  pro- 
ceeding had  upon  the  mortgage,  for  that  purpose,  and 
the  moneys  arising  therefrom  prove  insufficient  to  pay 
off  all  the  liens,  the  rule  for  appropriating  it,  in  such 
case,  according  to  seniority  of  lien,  could  not,  well,  be 
misapprehended,  as  it  must  be  familiar  to  all." 

"In  further  explanation  of  the  principle  here  in- 
tended to  Ijc  laid  down,  I  would  observe,  that,  in  case 
of  a  joint  lien,  each  house  or  building  bound  by  it,  is 
liable  for  the  whole  amount  thereof;  and  where  there 
are  other  liens  of  equal  date,  some  joint,  and  ollicrs 


252  JOINT,  APPORTIONED  CLAIMS. 

several,  as  in  the  present  case,  all  of  equal  date,  the 
monc}^  arising  from  a  judicial  sale  of  all  the  houses, 
must  be  marshalled  and  appropriated  in  such  manner, 
that  the  proceeds  of  no  one  of  them  shall  be  appro- 
priated to  the  discharge  of  any  subsequent  lien,  as 
long  as  any  portion  of  a  prior  lien,  either  joint  or  se- 
veral, upon  the  same  house,  remains  unsatisfied."^ 

The  Act  of  1831  provided  as  follows: — " Aiid 
icJiereas,  it  sometimes  happens,  that  several  houses 
and  other  buildings,  adjoining  each  other,  are  erected 
by  the  same  owner,  so  that  it  is  impossible  for  the  per- 
son who  has  found  and  provided  materials  for  the 
same,  to  specify,  in  his  claim  filed,  the  particular  house 
or  other  building  for  which  the  several  items  of  his 
demand  were  so  found  and  provided:  and,  luJiereas, 
doubts  have  arisen,  as  to  the  true  construction,  in  such 
cases,  of  the  laws  of  this  Commonwealth :  therefore, 

"Sect.  4.  It  shall  and  may  be  lawful,  in  every  such 
case,  for  the  person  so  finding  and  providing  materials, 
as  aforesaid,  for  two  or  more  adjoining  houses,  and 
other  buildings  built  by  the  same  person,  owner  Cf 
the  same,  and  debtor  for  the  said  materials,  to  file, 
with  his  claim  thereof,  an  apportionment  of  the  amount 
of  the  same  among  the  said  houses  and  other  buildings, 
and  each  of  said  houses  and  other  buildings  shall  be 
subject  to  the  payment  of  its  said  apportioned  share 
of  the  debt  contracted,  in  the  same  manner  as  is  pro- 
vided by  law  in  other  cases." 

The  Act  of  1836  provides  that: — "In  every  case,  in 

1  Pcnnock  V.  Hoover,  5  R.  313,  310. 


JOINT,  APPORTIONED  CLAIMS.  253 

which  one  claim  for  materials  shall  be  filed  by  the 
person  preferring  the  same  against  two  or  more  build- 
ings, owned  by  the  same  person,  the  person  filing  such 
joint  claim  shall,  at  the  same  time,  designate  the 
amount  which  he  claims  to  be  due  to  him,  on  each  of 
such  buildings,  otherwise,  such  claim  shall  be  post- 
poned to  other  lien  creditors;  and  the  lien  of  such 
claimant  shall  not  extend  beyond  the  amount  so  desig- 
nated, as  against  other  creditors  having  liens  by  judg- 
ment, mortgage  or  otherwise." 

With  reference  to  this  section,  the  Commissioners 
say : — "  §  14,  alters  somewhat  the  provision  of  section 
4,  of  the  Act  of  1S31,  the  preamble  to  which  ex- 
plains the  necessity  of  the  provision.  The  last  part 
of  that  section,  which  says,  that  the  several  buildings 
shall  be  liable  to  the  apportionment  made  by  the 
claimant,  has  been  omitted,  because  it  seems  objection- 
able, that  the  party  should  have  a  right,  conclusively, 
to  fix  the  liability  of  property  which  may  be  in  the 
hands  of  a  third  person ;  though  it  is  proper,  that, 
having  made  an  apportionment,  he  should  be  bound 
by  it,  as  against  other  creditors  or  purchasers.  It  is 
believed  to  be  best,  to  leave  the  correctness  of  the  ap- 
portionment to  be  determined  by  the  Court,  or  a  jury, 
if  the  parties  interested  should  dispute  it." 

It  is,  of  course,  proper,  in  these  claims,  to  aver  a 
joint  ownership  of  the  houses  against  which  the  claim 
is  filed.  Perhaps,  in  analogy  to  the  decision,  under 
other  parts  of  the  law,  however,  an  omission  to  do 
this,  might  be  supplied  by  proof  at  the  trial. 

It  will  be  observed,  that  the  provisions  of  tliis  x\ct 


254  OF  JOINT,  AITORTIONED  CLAIMS. 

apply  only  to  a  "claim  for  materials."  And  under  it, 
in  the  District  Court  for  the  city  and  county  of  Phila- 
delphia, it  was  held,  that  a  claim  for  work  cannot  be 
ajjportioned.^ 

But  in  the  case  of  Donahoo  v.  Scott,  the  Supreme 
Court  decides  the  contrary.  In  that  case  a  joint  ap- 
portioned claim  for  work  was  sustained.'^ 

It  might  be  a  question,  whether  those  who  do  ivorJc 
for  a  block  of  buildings  are  left,  as  they  were  before 
the  Act  of  1836,  with  the  privilege  given  them  under 
the  decision  in  Pennock  v.  Hoover,  of  filing,  either  a 
joint  claim,  or  several  apportioned  claims;  or  whether 
the  intention  of  the  Act  was  to  exclude  them  entirely. 
But  how  they  could  file  the  peculiar  joint  apportioned 
claim,  given  by  the  Act,  only  to  material  men,  is  not 
very  clear.  And,  yet,  the  decision  in  Donahoo  v. 
Scott,  is,  not  only,  a  confident  one,  but  expresses  some 
impatience  against  the  objection. 

This  subject,  however,  is  set  at  rest,  by  an  Act  of 
April  2oth,  1850,  which  enacts: — "That  the  several 
laws  of  this  commonwealth  authorizing  an  apportion- 
ment of  the  amount  due  for  materials  furnished  to 
two  or  more  buildings  owned  by  the  same  persons, 
among  the  said  buildings,  shall  extend  to  and  shall 
authorize,  in  similar  cases,  an  apportionment  for  work 
done,  and  for  work  done  and  materials  furnished,  where 
the  same  are  furnished  under  one  contract,  as  fully,  and 
in  the  same  manner,  as  is  now  authorized  and  allowed, 
in  the  case  of  materials  furnished." 

^  M'Namee  v.  Stoever,  Wh.  Dig.  5  Ed.  pi.  154.  "2  J.  45. 


JOINT,  APPORTIONED  CLAIMS.  255 

It  was  decided  at  au  early  day,  as  we  have  already 
seen,  that  a  joint  claim  could  not  be  filed  against  ad- 
joining buildings  owned  by  different  persons.^ 

In  a  late  case,  in  the  District  Court  for  the  city  and 
county  of  Philadelphia,  distinct  claims  were  filed 
against  each  of  several  adjoining  houses,  for  appor- 
tioned sums,  making,  in  the  aggregate,  the  price  of  ma- 
terials furnished  to  all  of  them,  indiscriminately,  upon 
the  order  of  the  same  person,  who  was  contractor  for 
the  whole  block.  The  court  struck  them  ofi",  on  motion, 
saying: — '"'It  appears  that  the  bills  were  contracted 
with  different  persons,  and  the  materials  furnished 
on  the  credit,  not  of  the  particular  building,  but  of 
that  and  another  building,  owned  by  another  person, 
the  contractor  being  the  same.  We  have  already  de- 
cided, that,  in  such  cases,  a  general  claim  cannot  be 
filed,  nor  can  a  separate  claim;  for  it  is  clear,  that 
materials  were  furnished,  indiscriminately;  and  sepa- 
rate claims  will  not  be  supported,  as  the  allegata  and 
Ijrohata  would  not  agree.  The  plaintiff  must  show 
that  the  particular  materials  were  furnished  to  the 
f)articular  buildings." 

In  the  subsequent  case  of  Davis  v.  Farr,  the  same 
court  made  a  similar  decision.  But  the  Supreme 
Court  reversed  their  judgment,  and  reinstated  the 
liens  which  had  been  stricken  off.  Burnside,  J.,  in 
delivering  the  opinion  of  the  court,  says,  with  refer- 
ence to  the  Act  of  1S3G:  "The  spirit  and  ol)ject  of 
the  Act  are,  that  each  house  should  jjay  for  its  own 

'  .l«^c,p.  249. 


25 G  JOINT,  APPORTIONED  CLAlMSv 

lumber;  and,  when  the  contractor  is  erecting  two 
houses  for  different  persons,  unless  the  material  man 
can  divide  his  bill  which  is  purchased  by  the  con- 
tractor, and  file  a  lien  for  a  proper  portion  to  such 
building,  the  first  section  of  the  Act  is  defeated. 
The  proceeding  is  in  rem,  and  I  am  unable  to  discover 
any  good  reason  why  this  should  not  be  done.  '  Every 
huihlhg,'  by  the  act,  '  is  subject  to  a  lien,  for  the  pay- 
ment of  all  dehts  contracted  for  icorh  done,  or  materials 
furnished.'  The  only  argument  of  weight  against 
such  a  course  is,  that  the  lien  may  be  filed  against 
one  of  the  buildinas,  for  an  improper  proportion ;  but 
this  can  be  adjusted  b}-  the  jury,  on  a  trial  on  the 
scire  facias,  under  the  direction  of  the  court."  ^ 

In  cases  wdiich  were  clearly  within  the  Act  of  1836, 
as  to  apportionment,  in  respect  of  the  nature  of  the 
debt  and  the  ownership,  the  question  has  arisen,  what 
houses  are  within  the  provision.  The  statute  speaks 
of  two  or  more  buildings;  but  it  has  been  settled,  that 
they  must  be  adjoining  houses;  or,  in  other  words, 
constitute  one  block. 

In  Pennock  v.  Hoover,  the  question  appears  to  have 
been  presented,  whether  a  joint  claim  could  be  filed, 
where  the  houses  did  not  adjoin  each  other,  and  it 
was  left  undecided."  But,  in  Chambers  v.  Young, 
it  was  distinctly  held,  that  a  joint,  apportioned 
claim  against  thirty-two  houses,  of  which  eight 
adjoined  each  other,  on  one  street,  twelve,  on 
another  street,  and  the  remaining  tw^elve,  on  a  third 

1  1  n.  170.  2  5  R.  292. 


JOINT,  APPORTIONED  CLAIMS.  257 

street,  constituting  three  distinct  blocks,  not  adjoining 
each  other,  could  not  be  sustained.  Gibson,  Ch,  J., 
delivering  the  opinion  of  the  court,  says:  "The  claim 
first  filed,  embracing,  as  it  did,  the  block  of  houses  on 
Carlton  street,  as  well  as  the  block  on  Callowhill 
street,  was  not  sustained  by  any  statute  or  precedent 
construction;  and  the  claimant  might  file  a  second 
time,  as  if  it  had  not  existed.  The  principle  ruled  in 
Pennock  v.  Hoover,  that  a  joint  lien  might  be  filed 
against  adjoining  houses,  put  up  together,  because  it 
might  not  be  in  the  power  of  the  claimant  to  discrimi- 
nate, was  the  basis  of  the  thirteenth  section  of  the 
Act  of  1836,  which  sanctioned  it,  and  provided  for 
carrying  it  out,  by  an  apportionment  of  the  gene- 
ral charge.  The  word  'building'  used  in  every  Act 
upon  the  subject,  was,  strictly,  applicable  to  a  block, 
which,  though  composed  of  separate  houses,  was  put 
up  as  a  whole;  but  it  could  not  be  predicated  of 
separate  blocks,  in  different  streets,  which  could,  in 
no  aspect,  be  viewed  as  entire.  As  a  charge  for 
labour  or  materials  furnished  to  the  builder  of  a 
particular  block,  could  not  be  apportioned,  with 
certainty  and  convenience,  in  the  first  instance,  ne- 
cessity required  it  to  l)e  joint;  but  it  is  easy  to  dis- 
criminate between  separate  blocks,  in  regard  to  which 
no  such  necessity  can  exist.  A  joint  claim  against 
them  would  re([uire  an  apportionment,  in  the  first 
place,  between  the  blocks  themselves,  as  integers,  and 
in  tlie  second,  an  apportionment,  respectively,  among 
the  houses  composing  them,  a  proceeding  not  wur- 
17 


258  JOINT,  APPORTIONED  CLAIMS. 

ranted  by  the  Act  of  1836.  The  claim  first  filed  was, 
consequently,  a  nullity,  and  properly  disposed  of."  ^ 

But,  in  a  still  later  case,  a  joint  claim  was  filed 
against  thirty-two  houses  erected  by  one  owner,  of 
which,  sixteen  fronted  on  one  street,  and  a  like  num- 
ber on  another  street,  parallel  with  the  first,  the  yards 
adjoining  in  the  rear.  The  court  held  the  claim  to  be 
good,  because  "  the  buildings  were  put  up  by  the  own- 
er, at  one  time,  and  on  one  lot,  and  the  materials 
were  furnished  for  them  all  jointly."^ 

In  a  case  decided  some  time  before  the  one  last  no- 
ticed, a  question  of  some  novelty  and  interest  arose. 
A  claim  was  filed  against  a  two-storied  dwelling-house, 
Swiss  barn,  wagon-shed,  wood-house,  and  wash-house, 
smoke-house  and  ice-house  on  a  farm.  To  this  claim 
it  was  objected,  that  it  ought  to  have  been  ajopor- 
tioned.  It  was  held,  however,  that  no  apportion- 
ment was  necessary.  Bell,  J.,  delivering  the  opi- 
nion of  the  court,  says :  "  But  the  reason  of  the 
enactment  shows  it  was  intended  to  apply  only, 
to  the  case  of  separate  and  distinct  erections,  ca- 
pable of  and  intended  for  a  distinct  possession  and 
enjoyment.  Looking  to  the  mischief  to  be  remedied, 
it  is  very  obvious,  the  statute  has  no  reference,  what- 
ever, to  the  necessary  buildings  of  a  farm  forming  com- 
ponent parts  of  a  common  property,  and  which,  for 
every  beneficial  purpose,  must  be  occupied  as  one  pos- 
session. The  dwelling-house,  barn,  wagon-house,  and 
other  similar  erections  are  but  appendages  of  the  farm, 
the  principal  thing,  and  built,  expressly,  with  a  view 

1  3  H.  265.  See  Campbell  v.  Furness,  Wh.  Dig.  Sup.  to  5  Ed. 
pi.  42.  2  Taylor  v.  Montgomery,  8  H.  445. 


JOIXT,  APPORTIONED  CLALMS.  259 

to  its  more  perfect  enjoyment.  They  are,  therefore, 
to  be  considered  as  constituent  parts  of  a  whole,  inca- 
pable of  separation,  without  injury;  and,  consequently 
were  intended  for  a  several  occupation. 

"Such  buildings  are,  in  every  particular,  unlike 
those  which,  though,  apparently,  joined,  are,  in  fact, 
completely  divided,  each,  of  itself,  constituting  an 
object  of  distinct  proprietorship  and  incumbrance. 
The  one  is  aggregate;  the  other  is  segregate.  The 
propriety  of  apportionment  among  the  latter,  is  mani- 
fest ;  its  uselessness,  as  applied  to  the  former,  is  not  less 
so.  For  the  reasons  given,  it  is  apparent,  a  case  like 
the  present  was  not  within  the  contemplation  of  the 
framers  of  the  law.  Though  the  language  used,  taken 
literally,  may  include  it,  yet,  being  without  the  circle 
of  the  mischief  to  be  cured,  it  is,  clearly,  not  embraced 
by  the  spirit  of  the  Act.  It,  consequently,  remains 
subject  only  to  the  prior  statutes,  which  do  not,  im- 
peratively, call  for  an  apportionment."-^ 

It  would,  of  course,  be  l^etter,  in  all  these  claims,  to 
aver  a  joint  ownership,  and  the  character  of  the  build- 
ings, as  adjoining  each  other,  or  constituting  a  single 
block . 

The  question  has  not  yet  arisen,  what  would  be  the 
effect  of  a  change  of  the  ownership  of  one  of  the 
houses,  after  the  work  was  done.  The  rights  of  tlie 
creditor  ought  not  to  be  affected  by  such  a  fact. 

Of  the  effect  of  a  failure  to  apportion,  in  postponing 
the  claimant,  we  have  spoken  under  another  head." 


»  Lauman's  Ap.  8  B.  473.  »  Ante,  p.  185. 


260  STRIKING  OFF  CLAIMS. 


CHAPTER  VI, 


OF  STRIKING  OFF  CLAIMS. 


If  a  claim  be  defective,  a  mode  of  getting  rid  of  it 
is,  to  move  to  strike  it  ofT.^  Of  course,  the  motion 
will  not  prevail,  unless  the  defect  is  one  which  is, 
necessarily,  fatal,  and  cannot  be  aided  or  supplied  by 
proof  upon  the  trial.  Many  questions,  as  to  the  validi- 
ty of  liens,  have  been  heard  and  decided  upon  motions 
of  this  kind. 

In  Lehman  v.  Thomas,  a  petition  was  filed,  as  the 
basis  of  the  motion,  and,  upon  it,  a  rule  to  show  cause 
was  granted."  This,  perhaps,  is  the  more  regular 
course. 

In  the  same  case  one  of  the  parties  demurred  to 
the  claim,  and  his  demurrer  was  sustained.  The  usual 
mode,  however,  adopted  in  practice,  is  the  motion. 

It  would  seem,  from  some  of  the  cases,  that  this 
prompt  effort  to  dispose  of  the  lien  meets  with  favour 
from  the  courts,  as  it  may  save  the  expense  of  a  trial. 
Defects  that  will  avoid  a  claim  upon  such  a  motion, 
have  been  disregarded,  after  a  trial  upon  the  merits. " 

In  Bayer  v.  Reeside,  Burnside,  J.,  says :  "  We  allow 


>  Lehman  v.  Thomas,  5  W.  &  S.  2G3.  '  Ibid. 

^  Shaw  V.  Barnes,  5  B.  21.     Bayer  v.  Beeside,  2  H.  108. 


STKIKING  OFF  CLAIMS.  261 

a  claim  which  is  defective,  in  form,  to  be  stricken  off 
on  motion  and  rule,  from  the  record;  but,  after  a  trial 
on  the  merits,  technical  objections  are  disregarded  by 
the  court."  ^ 

1  2  H.  1G8. 


262  THE  SCIRE  FACIAS  AND  ITS  SERVICE. 


CHAPTER  VII. 

OF    THE    SCIRE    FACIAS   AND   ITS    SERVICE. 

AVe  have  already  spoken  of  the  provision,  in  the 
Acts  of  1803  and  1806,  for  an  action  for  the  recovery 
of  the  debt,  based  upon  or  collateral  to  the  claim,  and 
of  the  difficulties  that  arose,  in  regard  to  the  character 
of  this  action  and  its  relation  to  the  claim. 

The  Act  of  1808  was  the  first  that  made  mention 
of  the  saVe  facias.  It  enacted,  that  the  creditor, 
^'having  a  claim  filed,"  might,  "at  his  election,  proceed 
to  recover  it,  by  personal  action,  according  to  the  na- 
ture of  the  demand,  against  the  debtor,  his  executors 
or  administrators,  or  by  scire  facias  against  the  debtor 
and  owner  of  the  building,  or  their  executors,  or  ad- 
ministrators." 

From  the  early  cases  it  would  appear,  that  this  was 
a  scire  facias  issued,  as  now,  upon  the  claim  filed. ^ 

The  Act  of  1836  expressly  declares,  that  the  pro- 
ceeding to  recover  the  amount  of  any  claim  shall  be 
by  a  writ  of  scire  facias,  and  gives  the  form  of  a  writ. 
We  know  of  no  other  mode,  at  present,  of  suing  out 
the  claim. 

Where  there  is  an  apportioned  claim,  there  must  be 

^  Howard  v.  M'Kowen,  2  Br.  150. 


THE  SCIRE  FACIAS  AND  ITS  SERVICE.  263 

a  scire  fadas  against  each  separate  house,  for  the  sum 
apportioned  to  it.  This  appears  to  have  been  the  con- 
struction both  of  the  Act  of  1831,  and  that  of  1830.^ 
It  appears,  from  the  decision  in  Hampton  v.  Broom, 
that  the  scire  facias,  under  the  Act  of  1808,  might 
name  the  owner  and  make  him  a  party  to  the  pro- 
ceeding, though  he  had  not  been  mentioned  in  the 
claim.  That  was  a  case  in  which  a  scire  facias  was 
issued  against  one  person,  as  owner,  upon  the  trial  of 
which  the  plaintiff  was  defeated,  and  having  issued  a 
second  scire  facias,  upon  the  same  claim,  against 
another  person  as  owner,  the  judgment,  in  the  first 
scire  facias,  was  pleaded  against  him,  as  a  former  re- 
covery; but  the  court  held,  that  the  ^v^^  scire  facias, 
being  between  other  parties,  the  judgment  on  it  was 
not  a  defence.  Of  course,  the  two  pi>©ceedings  could 
not  have  been  had,  if  the  owner  had  been  named  in 
the  claim  and  the  scire  facias  had,  necessarily,  pursued 

. 

But,  under  the  later  Act,  this  license  cannot,  as  we 
have  before  shown,  be  allowed.  It  has,  indeed,  been 
held,  that  a  scire  facias  upon  a  claim  against  a  firm, 
by  its  firm  name,  may,  for  the  first  time,  state  the 
individual  names  of  the  partners.^  But  no  greater 
latitude  than  this  seems  to  have  been  allowed.  In  a 
late  case,  where  a  mistake  had  been  made  in  the  scire 
facias,  by  the  omission  of  a  proper  party,  the  court 
refused  to  allow  an  amendment  making  him  a  party."* 


'  Barnes  v.  Wright,  2  Wb.  108.     Jones  v.  Shawan,  4  W.  &  S.  204. 

*  1  M.  241.  «  Black's  Ap.  2  W.  k  S.  181. 

*  Noll  V.  Swineford,  G  13.  187. 


26-f  THE  SCIRE  FACIAS  AND  ITS  SERVICE. 

AVliere  a  scire  /actus  has  been  discontinued,  or  the 
plaintiff  has  been  nonsuited,  he  may  issue  a  new  writ, 
upon  the  same  claim. ^ 

The  Act  of  1808  pointed  out  the  mode  in  which  a 
scire' facias  wds  to  be  served.  But  it  is  only  impor- 
tant, here,  to  refer  to  that  required  by  the  Act  of  1836, 
which  enacts,  that  "the  writ  of  scire  facias^  aforesaid, 
shall  be  served,  in  the  same  manner  as  a  summons,  upon 
the  defendant  therein  named,  if  he  can  be  found 
within  the  county,  and  a  copy  thereof  shall  be,  also, 
left  with  some  person  residing  in  the  building,  if  occu- 
pied as  a  place  of  residence;  but,  if  not  so  occupied, 
it  shall  be  the  duty  of  the  sheriff  to  affix  a  copy  of  such 
writ  upon  the  door  or  other  front  part  of  such  build- 
ing." 

The  18th  section  of  the  Act  of  1836,  required  an 
advertisement,  but  this  provision  was  repealed  by  an 
Act  of  1842. 

The  Commissioners,  in  their  report,  say,  upon  this 
subject, — "These  sections  have  been  introduced  for 
the  purpose  of  giving  some  additional  notice  to  third 
persons  interested,  of  the  proceedings  upon  a  claim. 
The  provisions  of  the  existing  law  seem  to  be  suffi- 
cient, as  respects  the  owner  of  the  property  with  whom, 
or  on  whose  account,  the  contract  was  made;  but  they 
are  strikingly  deficient  with  respect  to  third  persons, 
such  as  purchasers,  mortgagees,  judgment  creditors, 
and  other  mechanics  and  material  men,  since  they  pro- 
vide no  kind  of  notice  to  them,  while  they  may  be 


^  Bolton  V.  Johns,  5  B.  145.     Hampton  v.  Broom,  1  M.  24G. 


THE  SCIRE  FACIAS  AND  ITS  SERVICE.  265 

greatly  prejudiced  by  the  proceeding.  Frequently,  the 
owner  of  property  is  insolvent,  and  indisposed  to  con- 
test the  amount  of  a  claim.  Sometimes,  he  may  collude 
with  the  claimant,  and  a  judgment  may,  thus,  be  ob- 
tained, on  a  scire  facias,  to  a  much  greater  amount,  than 
the  justice  of  the  case  w^ould  warrant;  whereas,  if  the 
lien  creditors  had  notice,  they  might  have  come  in  and 
disputed  the  amount. 

"But  how  is  notice  to  be  ciiven  to  them?  Ou2;ht 
they  to  be  made  parties  to  the  suit,  as  is  required  in 
chancery,  in  England,  or  served  with  a  rule  to  appear 
and  take  defence,  if  they  see  proper?  The  objection 
to  this  is,  that  it  imposes  on  the  claimant  great  ex- 
pense and  inconvenience,  in  making  search  for  all  these 
persons,  whom  it  will  be  necessary  to  trace  through 
the  various  offices,  especially  in  the  case  of  mortgages, 
which  must  be  searched  for  against  all  persons  who 
have  previously  held  the  property;  and,  even  after  all 
pains  taken,  some  persons  interested  might  remain 
undiscovered.  The  expense,  too,  of  serving  writs 
and  notices  upon  those  who  were  ascertained  to  be 
interested,  would  be  very  great.  The  least  expensive, 
and,  in  some  respects,  the  most  certain  mode,  seems  to 
be  that  of  public  advertisement,  which  is  adopted  in 
many  other  cases.  The  provision  we  have  added  in 
the  eighteenth  section,  that  a  copy  of  the  scire  facias 
shall,  in  all  cases,  be  left  at  the  building  or  allixed 
thereto,  will  come  in  aid  of  the  other  means  of  notice. 
To  give  an  opportunity  of  advertising,  for  a  sufficient 
lengtli  of  time,  it  is  necessary,  that  there  sliould  be  an 
interval  of  at  least  fifteen  days,  between  the  issuing 


266  THE  SCIRE  FACIAS  AND  ITS  SERVICE. 

and  return  of  the  writ,  which  is  the  object  of  the 
seventeenth  section." 

In  Donahoo  v.  Scott,  a  return,  "served  by  copy,  on 
A.,  one  of  the  defendants,  and  by  putting  up  a  copy 
in  front  of  the  building,  and  niliil  as  to  B.,  the  other 
defendant,"  was  held  sufficient.^ 

I  2  J.  45. 


COMPELLING  THE  CLAIMANT  TO  PROCEED.  267 


CHAPTER  VIII. 

OF   COMPELLING   THE    CLAIMANT   TO   PEOCEED. 

It  often  happens,  that  a  creditor,  after  filing  his 
claim,  lets  it  lie,  satisfied  with  his  security,  or,  sup- 
posing, that  the  mere  embarrassment  which  it  occa- 
sions, as  an  incumbrance,  may  lead  to  its  payment. 
If  the  claim  were  valid,  and  could  not  be  stricken 
off,  there  appears  to  have  been  no  remedy  for  the 
owner,  prior  to  the  Act  of  which  we  are  about  to  speak, 
which  was  directed  to  this  very  hardship. 

The  23d  section  of  the  Act  of  183G  enacts,  that, 
'^In  every  case  in  which  any  claim  shall  be  filed 
against  any  building  as  aforesaid,  and  no  scire  facias 
shall  have  issued  thereon,  it  shall  be  lawful  for  the 
owner  of  such  building,  or  any  person  interested 
therein,  to  apply  by  petition,  to  the  court  in  which 
such  claim  shall  be  filed,  setting  forth  the  facts ;  where- 
upon, such  court  may  grant  a  rule  upon  the  party 
claimant,  and  others  interested,  to  appear,  in  court,  at 
a  time  to  be  fixed,  for  such  purpose,  and,  on  the  return 
of  such  rule,  may  proceed,  in  like  manner,  as  if  a 
scire  facias  had  been  issued  by  such  claimant,  and  had 
been  duly  served  and  returned." 

Two  cases,  in  the  District  Court  of  Philadelphia,  are 
the  only  ones  of  wliich  we  know,  directing  the  course 
of  practice  under  this  section. 


20 S  COMPELLING  THE  CLALMANT  TO  PROCEED. 

In  that  of  Borton  v.  Morris,  the  defendant  filed  his 
petition,  under  this  section,  whereupon,  the  court  made 
an  order  as  follows,  with  the  intimation,  that  a  like 
order  would  be  made  in  future  cases:  "That,  in  each 
of  these  cases,  the  plaintifl'  shall  file  a  statement  or 
declaration,  upon  the  contract  under  which  the  said 
work  was  done,  stating  the  same,  particularly ;  if  any 
special  contract  were  made,  annexing  thereto,  as  a 
part  thereof,  a  bill  of  the  items  or  particulars  of  the 
demand,  as  fully  as  they  appear  upon  the  plaintiff's 
book  of  entries,  if  any  such  are  intended  to  be  offered 
in  evidence,  on  the  trial;  and,  if  no  such  entries  are 
to  be  offered,  then  the  said  bill  shall  state,  particu- 
larly, the  dates  or  times  at  which  said  work  and  la- 
bour were  performed.  And  the  court  further  direct, 
that  the  defendant  allege,  particularly,  his  defence  to 
such  parts  of  the  plaintiff's  statement,  or  to  such  item 
of  his  bill  of  particulars,  specifying  the  same,  as  he 
intends  to  dispute;  and  neither  party  shall  be  allowed, 
on  the  trial,  to  allege  or  prove  any  matter  or  thing  not 
contained  in  the  statement,  or  bill  of  particulars,  ex- 
ception, or  defence.  The  plaintiff  to  comply  with  this 
order  on  or  before  the  7th  day  of  June,  1837,  or,  in 
default  thereof,  judgment  of  non.  pros,  to  be  entered, 
in  each  case,  and  the  claims  to  be  stricken  from  the 
record."^ 

In  Walter  v.  Streeper,  it  was  held,  that,  after  an 
issue  had  been  joined  under  this  section,  the  claimant 
could  not  suffer  a  non-suit.     The  court  say: — "Now, 

^  2  M.  109. 


COMPELLING  THE  CLAIMANT  TO  PROCEED.  269 

if,  after  the  owner  has  called  on  the  claimant  to  pro- 
ceed, who  does  so,  the  claimant,  at  the  trial,  may  suf- 
fer a  non-suit,  the  whole  purpose  of  the  law  would  be 
defeated;  for  it  would  compel  the  defendant,  again,  to 
call  on  the  claimant  to  proceed,  who,  on  another  trial, 
might,  again,  suffer  a  non-suit,  and,  so,  the  case  would 
never  be  ended."  ^ 

1  Id.  348. 


270  COMING  IN  BY  SUGGESTION. 


CHAPTER  IX. 

OF   COMING   IN   BY   SUGGESTION. 

The  lOth  and  20tli  sections  of  the  Act  of  183G  are 
as  follows : — ''  Sect.  19.  Upon  the  return  of  such  writ, 
it  shall  be  lawful  for  any  other  person,  having  filed  a 
claim  as  aforesaid,  to  cause  to  be  entered  on  the  record 
of  the  same  suit,  a  suggestion,  setting  forth  the  amount 
and  nature  of  his  demand,  and,  thereupon,  he  may 
have  a  rule  upon  the  defendant  to  appear  and  plead 
thereto,  as  in  other  actions. 

"Sect.  20.  If  the  defendant  shall  appear  and  plead 
to  such  suggestion,  and  issue,  either  in  fact  or  law,  be 
joined,  upon  any  plea,  such  particular  issue  shall  be 
tried  and  determined,  as  in  other  cases:  if  the  defen- 
dant shall  not  plead  to  such  suggestion,  after  due  no- 
tice, judgment  shall  be  entered  for  the  claimant  filing 
the  same,  and  the  amount  of  the  claim  shall  be  ascer- 
tained as  in  other  cases." 

The  Commissioners,  in  their  report,  say :  "  These 
sections  are  intended  to  provide  a  method  by  which 
other  lien  creditors  may  come  in  and  avail  themselves 
of  the  opportunity  of  the  suit  commenced,  without  the 
delay  and  expense  of  issuing  successive  writs  of  scire 
facias.  This  mode  of  proceeding  is  not  without  pre- 
cedent, even  in  our  own  jurisprudence." 


COMING  IN  BY  SUGGESTION.  271 

In  a  case  in  the  District  Court  of  Philadelphia,  a 
suggestion  was  filed,  under  these  sections,  and  a  rule 
taken  upon  the  defendant  to  plead/ 

The  od  section  of  the  Act  of  April  14th,  1855,  con- 
tains the  provision  :  "  That  every  claimant,  having  a 
claim  filed  for  work  or  materials,  or  both,  who  shall, 
afterwards,  proceed  to  perform  further  work,  or  furnish 
other  materials,  or  both,  may  make  suggestion  thereof, 
on  the  same  record,  and  filing  a  statement  of  the 
amount  and  particulars  thereof,  which  may  be  reco- 
vered, with  the  original  claim,  under  the  writ;  but  if 
the  original  claim  shall  have  been  sued  out,  then,  a 
separate  scire  facias  may  be  issued  for  the  supplemen- 
tal claim." 

1  Noyes  v.  Fritz,  2  M.  162. 


272    JUDGMENT  FOR  WANT  OF  AN  AFFIDAVIT  OF  DEFENCE. 


CHAPTER  X. 

OF    THE   JUDGMENT   FOR   WANT   OF   AN   AFFIDAVIT   OF 
DEFENCE. 

By  the  Act  of  March  28th,  1835,  judgments,  for 
"svant  of  an  affidavit  of  defence,  were  allowed  to  be 
entered  "on  liens  of  mechanics  and  material  men, 
under  the  Act  of  17th  of  March,  1806,"  in  the  District 
Court  for  the  city  and  county  of  Philadelphia. 

By  an  Act  of  March  12th,  184-2,  it  was  enacted  as 
follows : — "  The  2nd  section  of  the  Act  to  which  this 
Act  is  a  supplement,  shall  be  construed  to  embrace 
actions  oi  scire  facias  on  liens  of  mechanics  and  mate- 
rial men,  under  the  Act  of  the  16th  of  June,  1836, 
entitled  ^an  Act  relating  to  the  lien  of  mechanics  and 
others,  upon  buildings,'  and  under  any  other  Act  ex- 
tending the  provisions  of  the  said  last  mentioned  Act; 
and  all  former  proceedings  in  said  Courts,  so  far  as 
they  are  founded  on  such  construction,  are  hereby  con- 
firmed." 

And,  by  an  Act  of  March  11th,  1836,  it  is  provided, 
that,  "In  all  actions  which  have  been  or  shall  be 
brought  in  the  said  Court,  upon  any  record  remaining 
therein,  it  shall  not  be  deemed  or  held  to  have  been, 
or  to  be  necessary  for  the  plaintiff,  to  file,  in  the  office 
of  the  prothonotary  of  the  said  Court,  a  copy  of  such 
record,  to  entitle  him  to  enter  a  judgment  under  the 


ATFIDAYIT  OF  DEFENCE.  2  /  3 

2nd  section  of  the  Act  to  which  this  is  a  supplement : 
Provided,  he  shall  have  complied  with  the  other  re- 
quisitions of  the  said  Act." 

Under  these  Acts,  the  practice  is  constant,  to  take 
judgments,  under  writs  oi  scire  facias,  upon  claims,  for 
want  of  an  affidavit  of  defence,  without  filing  any  copy. 

In  Eichards  v.  Reed,  the  court  refused  to  give  judg- 
ment for  want  of  an  affidavit  of  defence,  where  the 
contractor  was  dead,  and  his  administrator  was  sued.^ 

-      1  8  Leg.  Int.  126. 


18 


274  PLEADINGS. 


CHAPTER   XI. 

OF  THE  PLEADINGS. 

WnEEE  no  judgment  is  entered,  for  want  of  an  affi- 
davit of  defence,  the  parties  proceed  to  issue  as  in  other 
cases. 

Tiie  scire  facias  is  a  sufficient  declaration.  No  other 
need  be  filed.^  The  first  step,  therefore,  in  the  tech- 
nical pleading,  is  the  plea. 

When  the  claim  and  scire  facias  only  named  one  of 
two  contractors,  the  court  held,  that  it  was  matter  of 
abatement,  and  ought  to  have  been  so  pleaded.^ 

Where  a  claim  is  defective  on  its  face,  and  no  mo- 
tion to  strike  it  off  has  been  made,  it  appears  that  a 
demurrer  is  not  irregular." 

A  plea  of  "no  lien,"  has,  it  appears,  been  filed,  in 
some  of  the  cases.^  But  it  has  been  expressly  held 
to  be  bad.  In  a  late  case,  the  court  refused  to-  treat 
it  as  anything  but  a  general  demurrer.    But  the  judge 


^  Ridgway  v.  Hess,  1  Br.  347. 

2  Richubaugh  v.  Dugan,  7  B.  394,  But  see  Howard  v.  M'Kowen, 
2  Br.  150. 

3  Bartlett  v.  Kingan,  7  H.  341.  Bayer  v.  Reeside,  2  II.  167. 
Lehman  r.  Thomas,  5  W.  &  S.  2G2.  -M'Bowell  v.  Hill,  7  Leg.  Int. 
179. 

'  Johns  V.  Bolton,  2  J.  339.  McDowell  v.  Hill,  7  Leg.  Int.  179. 
2  H.  175. 


PLEADINGS.  275 

takes  occasion  to  say: — "Indeed,  it  is  so  entirely  un- 
certain, in  its  short  form,  whether  it  means  to  raise 
an  issue  in  fact,  or  of  law,  that  it  should  not  be  allowed, 
and  should  be  stricken  off  on  motion." 

These,  as  far  as  we  can  find,  have  been  the  pleas 
by  which  the  parties  have  endeavoured  to  avail  them- 
selves of  defects  on  the  face  of  the  claim.  We  may 
refer,  however,  in  this  connexion  to  an  instance  in 
which  a  plea  was  as  follows : — "  The  claim  is  null  and 
void,  because  it  does  not  state  the  kind  and  amount 
of  materials,  and  the  times  when  furnished,  and  this 
he  is  ready  to  verify  by  the  record,"  was  stricken  off 
by  the  court  on  motion.^ 

The  registry  of  a  mechanic's  claim,  being  no  record, 
a  plea  of  "7zitZ  tkl  record"  is  a  nullity.  In  a  case 
where  such  a  plea  was  filed,  the  court  say : — '*  Had 
there  been  a  variance  between  the  registry  and  the 
scire  facias,  the  defendant  might,  perhaps,  have  de- 
murred." ^ 

In  regard  to  the  pleading,  in  this  action,  Lowrie,  J., 
in  the  District  Court  of  Allegheny  county,  says,  in  one 
of  the  later  cases:  "I  know  of  no  proper  pleas,  in 
this  Anomalous  form  of  action,  except  such  as  distinctly 
state  the  facts  upon  which  the  defendant  relies  for  his 
defence,  or  such  as  deny  the  allegations  which  ho  re- 
quires the  plaintifi"  to  prove.  He  may  traverse  the 
allegation  of  the  doing  of  the  work,  or  furnishing  of 
tlie  materials,  or  that  the  work  or  materials,  or  both, 


^  Cliristine  v.  Mander.son,  2  B.  3G3. 
'  Davis  V.  Church,  1  W.  &  S.  240. 


276  PLEADINGS. 

amount  to  so  much;  or  plead,  that  the  house  is  misde- 
scribed,  or  that  the  work  was  not  done,  within  six 
months,  or  he  may  set  up  payment,  release,  or  other 
matter  in  evidence."^ 

The  ordinary  pleas  in  bar  to  the  scire  facias,  are  the 
short  pleas,  '•  non  assumpsit"  "  payment,"  "  set-off,"  with 
leave."  In  one  case,  we  find,  that,  even  a  terre  tenant 
who  came  in  to  defend,  upon  notice  of  the  scire  facias, 
pleaded  "  non  assumpsit  and  payment,  with  leave,  &c."  ^ 

It  is  evident,  however,  that  the  plea  of  non  assump- 
sit is  not  proper  where  the  basis  of  the  claim  is  not  a 
simple  contract  debt,  but  an  agreement  under  seal. 

We  find  no  cases  showing,  what  may  be  given  in 
evidence,  under  this  plea,  when  it  is  proper.  It  is 
probable,  that  many  of  the  defences  that  would  avail 
the  defendant  should  be  specially  pleaded.  Such  a 
course  is  accompanied,  only,  w^ith  the  peril  attendant 
upon  the  form  of  every  special  plea.  There  is  no 
doubt  that  a  special  plea  is  good,  though  the  evidence 
proper  to  sustain  it  may  be  admissible  under  the  gene- 
ral issue. 

We  find  numerous  instances,  therefore,  of  special 
pleas.  Many  of  them  are  directed  to  the  defects  of 
the  claim,  not  appearing  on  its  face,  but  arising  from 
matters  dehors,  and  connected  with  technical  theories 
governing  the  proceeding. 

Thus  we  find  in  one  case,  a  plea  of,  "claim  not  filed 

1  McDowell  V.  Hill,  7  Leg.  Int.  179. 

-  See  Chambers  v.  Yarnall,  3  H.  266.     Ewing  v.  Barras,  4  W.  & 
S.  467. 
'  Hopkins  v.  Conrad,  2  R.  316;  and  see  Johns  v.  Eolton,  2  J.  341. 


PLEADINGS.  277 

•within  six  montlis,"  to  which  no  objection  appears  to 
have  been  made/ 

In  another  case,  we  find  a  plea  sustained,  averring, 
that  the  premises  against  which  the  cLaim  was  filed 
had  been  sold  under  judicial  process,  and  the  lien  thus 
discharged.^ 

We  find  it  pleaded,  in  another  case,  that  the  work 
was  not  done,  nor  the  materials  furnished,  on  the 
credit  of  the  building.^ 

So  a  plea,  that,  the  person  named  as  owner  is  not 
owner,  though  not,  it  appears,  a  good  plea,  for  the  con- 
tractor, is  proper  for  the  person  named  as  owner. 

A  defence  founded. upon  a  special  contract,  must  be 
pleaded.  For  the  plaintiff*  is  not  bound  to  refer  to  or 
mention  it.^ 

In  Haworth  r.  Wallace,  the  defendant  pleaded,  that 
the  reputed  owner  had,  at  the  commencement  of  the 
building,  and  at  the  time  of  pleading,  only.a  lease-hold 
interest.^ 

In  the  case  of  Campbell  v.  Scaife,  in  the  District 
Court  of  Allegheny  county,  a  plea  that  "the  plaintiffs 
never  had  any  claim  against  the  said  house,  in  manner 
and  form  as  set  forth,"  w\as  held  bad,  because  it  was  a 
mere  denial  of  a  legal  conclusion.*' 

In  the  same  case,  a  plea  that  the  debt  claimed  ought 
not  to  be  levied,  &c.,  because  the  plaintiffs,  at  the  time 
of  furnishing  the  materials,  agreed  to  allow  a  credit  of 


»  Driesbach  v.  Keller,  2  B.  77.     Bayer  v.  Rceside,  2  IT.  107. 
2  Johns  V.  Bolton,  2  J.  :5;{0.  •'  Cable  v.  P.irry,  1   11.  isl. 

'  O'Brien  v.  Logan,  'J  B.  \)1 .     Sec  Iluly  v.  rro.s.scr,  S  W.  k  S.  lo.'J. 
0  2  II.  118.  »  8  Leg.  Int.  74. 


278  rLEADIXGS. 

four  mouths  on  the  same,  which  period  had  not  elapsed, 
concluding  with  a  verification,  was  held  bad  on  de- 
murrer, because  it  merely  showed,  if  true,  that  the 
scire  facias  had  issued  prematurely,  and,  not,  that  there 
was  no  lien,  and  the  prayer  should,  therefore,  have 
Ijeen,  that  the  writ  should  be  quashed. 

And  a  plea,  that  the  debt  claimed  ought  not  to  be 
levied  of  said  house,  because  the  plaintiffs  were  sub- 
contractors, under  one  I.  M.,  impleaded  with  the 
owners,  who  had  undertaken  to  erect  said  house  for 
the  owners,  and  to  furnish  the  materials,  and  to  re- 
ceive payment  therefor,  partly  in  merchandise,  and 
partly  in  money,  in  one,  two  and  three  years  after  the 
completion  of  the  building;  concluding  with  an  aver- 
ment of  readiness,  and  with  a  verification,  was  held 
bad  on  demurrer. 

The  effect  of  the  plea  of  payment  is  not  peculiar  in 
this  action.  Evidence  may  be  given  of  payment  in 
goods.  But  no  advantage  can  be  taken  of  any  defect 
in  the  claim,  or  in  the  fibng  of  it.  The  plea  admits 
the  truth  of  the  averment  in  the  writ,^ 

It  has  been  held  that  the  contractor  may  plead  a 
set-off." 

Another  claim  filed  for  the  same  debt  is  not  a  good 
plea.^ 

But  a  judgment  for  the  defendant,  in  a  personal 
action,  for  the  same  debt,  is  a  good  plea. 

^  Richabaugli  v.  Dugan,  7  B.  394.  Lewis  v.  Morgan,  11  S,  &  R. 
235. 

2  Gable  V.  Parry,  1 II.  181.       ^  Bournonville  v.  Goodall,  10  B.  133. 


THE  EYIDEXCE.  279 


CHAPTER  XII, 


OF    THE   EYIDEXCE. 


Upon  the  trial,  the  plaintiff  in  the  scire  facias,  must 
prove  the  case  upon  which  he  relies,  unless  he  is  re- 
lieved from  it,  hy  a  plea  which  assumes  the  affirma- 
tive of  the  issue. 

In  presenting  the  points  which  have  been  decided 
upon  the  subject  of  the  evidence,  in  these  proceedings, 
we  shall  take  the  different  steps  of  the  plaintiff's  case, 
in  sucli  order  as  we  may  suppose  them  to  be  proved 
upon  the  trial. 

Early  steps  in  the  proof  would,  properly,  be  the 
facts  of  the  erection  and  construction,  and  the  cha- 
racter of  the  building  to  bring  it  within  the  Act. 

The  time  of  its  commencement  need  not  be  proved. 
The  judgment  is  irrespective  of  that,  and  does  not  find 
it,  or  conclude  any  party  with  reference  to  it.  When 
rendered,  it  is  left  to  struggle  with  other  liens  for  pri- 
ority, and  to  have  the  date  of  its  relation  back  estab- 
lished, when  a  case  arises  in  which  it  becomes  impor- 
tant. It  is  not  made  a  question  upon  the  trial  of  the 
scire  facias. 

The  names  and  characters  of  the  parties  should  be 
shown, — their  relative  positions,  as  owner  and  con- 
tractor, and  the  title  of  the  former,  to  tlie  premises 


280  THE  EVIDENCE. 

against  which  the  daim  is  filed.  For,  if  his  interest 
be,  merely,  of  a  lease-hold  character,  there  can  be  no 
recovery.  But  the  jury  does  not,  where  there  is  a  re- 
covery, find  the  character  of  the  estate  which  is  aifect- 
ed,  nor  does  the  verdict  conclude  that  question. 

It  would  seem  from  the  views  of  the  Court  which 
decided  the  case  of  Campbell  v.  Scaife,  that,  the  claim- 
ant must,  also,  show  the  contract  of  the  chief  con- 
tractor with  the  owner.^  We  have,  already,  sug- 
gested, however,  that  the  practice  is  not  in  accordance 
with  this  opinion. 

The  debt  must  be  proved, — the  doing  of  the  work 
and  the  furnishing  of  the  materials.  As  to  the  mode 
of  proving  these  there  is,  perhaps,  no  rule  peculiar  to 
this  system.  The  claim,  itself,  is,  of  course,  not  evi- 
dence for  the  claimant,"  though  it  may,  it  appears,  go 
out  with  the  jury.^ 

Where  there  is  no  special  contract,  those  facts  are 
frequently  proved  by  books  of  original  entry  in  the 
usual  manner.  Where  there  is  such  a  contract,  by 
the  contract,  itself,  and  testimony  showing  perform- 
ance. 

It  has  been  made  a  question,  how  far  the  proof  must 
correspond,  exactly,  with  the  allegations  in  the  claim. 

We  have,  already,  found  in  examining  the  cases 
bearing  upon  the  form  of  the  claim,  that,  where  pro- 
per statements  in  the  claim  are  omitted,  the  court  will 


>  8  Leg.  Int.  74. 

2  Hills  V.  Elliott,  16  S.  &  R.  57. 

"  Odd  Fellows'  Hall  v.  Masser,  12  H.  510. 


THE  EVIDENCE.  281 

often  allow  tliem  to  be  supplied  by  proof.  In  such 
cases,  the  proof  is  not  of  any  peculiar  form  or  charac- 
ter, but  only  such  as  must  have  been  offered,  under 
any  circumstances,  whether  the  claim  were  sufficient 
or  not,  in  order  to  make  out  a  proper  case.  Thus 
omitted  dates  have  been  proved  in  support  of  the  claim ; 
and,  where  there  has  been  no  sufhcient  designation  of 
the  locality  of  the  building,  or  averment  of  a  credit 
given  to  it,  the  Court  has  allowed  proof,  at  the  trial, 
to  supply  them.^ 

But,  where  the  statements  in  the  claim  are  mistaken 
or  incorrect,  may  evidence  be  introduced  which  contra- 
dicts them? 

Thus,  the  claim  must  set  forth  the  amount  or  sum 
claimed  to  be  due,  and  the  nature  or  kind  of  the  work 
done,  or  the  kind  and  amount  of  materials  furnished, 
and  the  time  when  the  materials  were  furnished,  or 
the  work  was  done,  &c.  Can  these  statements  be 
contradicted  or  corrected? 

It  is  not  necessary  to  prove  the  exact  amount  men- 
tioned, to  be  due.  The  plaintiff  can  recover  no  more, 
but  he  may  recover  less  than  he  claims.^  And  the 
courts  have  gone  still  further,  in  their  indlilgence. 
Yfhere  an  impossible  date  was  inserted  in  the  claim, 
the  court  allowed  the  plaintiff  to  recover  upon  proof 
of  the  correct  date.^ 

So,  in  another  case,  it  was  held,  that  the  proof  upon 


'  Ilc-lircr  V.  Zeiglcr,  3  W.  &  S.  258.     Jones  v.  Shawau,  4  W.  &  S. 
257. 

^  Jones  V.  Sliawan,  .sup.     Jiill  c.  .M'Duwcll,  2  II.  170. 
»  Hillary  v.  Pollock,  1  II.  18G. 


282  THE  EVIDENCE. 

the  trial,  as  to  the  identical  days  of  doing  the  work 
or  delivering  materials,  need  not  conform  exactly  with 
the  claim.^  Probably,  the  same  doctrine  would  be 
held,  in  reference  to  the  precise  nature  or  kind  of  the 
work,  or  kind  and  amount  of  materials. 

And,  where  the  bill  annexed  to  a  claim,  set  forth 
a  certain  sum  due  as  the  contract  price,  on  the  trial 
an  expert  was  called,  to  prove  the  measurement  value 
of  the  work,  the  agreement  having  Ijeen  lost,  and  the 
court  sustained  the  proof,  saying,  "The  measurement 
of  the  work,  proved  by  Sterret,  was  competent,  though 
diiferent  from  the  claim  filed;  inasmuch  as  the  plain- 
tiff could  recover  no  more  than  the  amount  specified 
against  a  purchaser." - 

In  Hill  V.  M'Dowell,  the  claim  was  for  ^248,02,  for 
"carpenter's  work  done  to  the  house,"  and  the  plain- 
tiff, in  spite  of  objection,  was  allowed  to  prove  the 
measurement  value  of  what  he  had  done.^ 

But  there  are  limits  even  to  the  indulgence  shown 
to  this  class  of  creditors. 

Thus,  it  was  held,  that  where  the  claim  described  a 
house  as  in  one  street,  in  an  ejectment,  by  one  hold- 
ing, under  the  claim,  a  house  in  another  street,  parol 
testimony  could  not  be  admitted  to  show,  that  the 
latter  house  was  intended  by  the  description  in  the 
claim,  and,  that  the  defendant,  who  built  it,  knew 
that  it  was  so.'* 


^  Haviland  v.  Pratt,  9  Leg.  Int.  98.  -  Jones  v.  Shawan,  sup. 

'  2  H.  176.     And  see  Thorn  v.  Heugh,  9  Leg.  Int.  46. 
*  Simpson  v.  Murray,  2  B.  76. 


THE  EVIDENCE.  283 

We  have  seen,  that  a  special  contract,  for  the  doing 
of  the  work  or  furnishing  the  materials,  need  not  be 
mentioned  in  the  claim.  It  must,  of  course,  however, 
be  proved  on  the  trial,  and  its  performance  established. 

It  has  been  made  a  question,  how  far  the  owner  is 
bound  by  a  contract  made  by  his  contractor.  It  is 
evidence  against  him  in  favour  of  the  mechanic,  but 
is  it  conclusive? 

In  a  case  in  the  District  Court  for  the  city  and 
county  of  Phihadelphia  it  was  held  that  it  was  not, 
but  that  the  owner  might  show,  that  the  contract 
price  was  too  high,  or  beyond  the  fair  market  value, 
at  the  time ;  that  the  contractor  had  been  careless  of 
his  interests,  or  had  made  an  improvident  and  unjust 
bargain,  and  this,  where  no  fraud  was  alleged.^  And 
this  seems  to  be  confirmed  by  the  Supreme  Court,  in 
a  later  case.^ 

The  next  step  in  the  testimony  is  to  verify  the  de- 
scription of  the  house,  its  locality,  &c.  How  far  the 
proof  may  supply  defects  or  omissions,  in  the  claim, 
we  have  already  shown.^ 

The  work  must  have  been  done,  "for  or  about  the 
erection  or  construction,"  in  other  words,  on  the  credit 
of  the  building.  This  must  appear,  affirmatively,  from 
the  evidence. 

A  usual  and  proper  mode  of  proving  this  credit  to 
a  particular  house  is,  by  a  charge  to  the  house,  on  the 
book  of  original  entries. 


'  Cattanach  v.  Ingcrsoll,  9  Leg.  Tnt.  7. 

■'  Odd  Fellows'  Hall  v.  Masser,  12  II.  511.         '  Anlr,  i,.  '_'  11,  ko. 


284  THE  EVIDENCE. 

There  has  been  an  apparent  inclination,  in  the 
minds  of  some  of  the  judges,  to  make  the  book  of 
original  entries,  in  all  cases  in  which  it  is  possible,  the 
only  evidence  of  this  credit.  And,  though  it  lias  been 
since  established,  that  such  an  entry  is  not  indispensa- 
ble, yet  the  courts  lean  strongly  in  favour  of  such  evi- 
dence, and  against  a  case  in  which  this  form  of  the 
charge  is  not  pursued.^ 

In  the  case  of  Dickinson  College  v.  Church,  already 
largely  cited,  upon  another  point,  the  court  says : — "  It 
is  not  indispensable,  as  was  ruled  in  Church  v.  Davis, 
(9  Watts,  304,)  that  the  account  should  be  opened 
against  the  building.  The  Act  does  not  prescribe  the 
kind  of  evidence  necessary  to  prove,  that  the  debt  was 
thus  contracted,  but  leaves  that  to  depend  upon  the 
ordinary  rules  of  evidence.  Yet,  notwithstanding,  it 
would  be  well  worth  the  serious  attention  of  the  ven- 
dors, to  pay  some  attention  to  this,  as,  when  this  is 
omitted,  the  account  comes  before  the  court  in  rather 
a  suspicious  and  questionable  shape.  It  enables  ma- 
terial men,  when  a  contractor  is  en2;a2:ed  in  different 
works,  at  the  same  time,  to  fasten  a  lien  on  all,  or  any 
one,  or  more  of  them,  at  his  pleasure.  The  owner 
should  have,  at  least,  all  the  advantage  that  may  arise 
from  an  unequivocal  intention  to  hold  the  building 
answerable  to  the  amount  of  the  materials  which  may 
be  furnished.  It  very  often  happens,  that  when  the 
materials  are  purchased,  the  personal  responsibility  of 


'  Hills  V.  Elliott,  16  S.  &  E.  56.     M'Mullen  v.  Gilbert,  2  Wh. 
277.    Kelly  v.  Brown,  8  H.  447. 


THE  EVIDENCE.  285 

the  contractor  is  deemed  amply  sufficient;  but  subse- 
quent events  make  it  expedient  to  resort  to  another 
security.  This  affords  a  temptation,  which  is  irresis- 
tible, to  create  a  lien  by  the  aid  of  parol  testimony, 
v/hen  such  a  thing  never  entered  into  the  imagination 
of  either  vendor  or  vendee.  When  this  is  the  case, 
where  there  is  more  than  one  building,  it  will  be,  usual- 
ly, entered  against  that  building  which  happens  to 
afford  the  best  security  for  the  debt."  ^ 

No  particular  form  of  the  entry  is  necessary.  It 
should  refer  to  the  house,  for  which  the  work  is  done, 
or  materials  furnished,  as  well  as  to  the  contractor. 
It  should  be  entered  as  done  or  furnished  to  or  for  the 
contractor,  for  the  building.  But  no  case  goes  so  far 
as  to  require  the  formal  recital  in  books  of  account, 
that  the  work  was  done  or  materials  furnished,  "  for  or 
about  the  erection  or  construction,"  &c.  Indeed  the  con- 
trary has  been  held.^  Where  the  entries  require  the 
aid  or  support  of  parol  testimony,  for  this  purpose,  it 
is  often  allowed.  Thus,  where  the  book  of  original  en- 
tries charged  materials  to  two  blocks  of  houses,  jointlj", 
and  without  discrimination,  and  parol  evidence  was  ab- 
solutely necessary  to  specify  to  which  block  the  par- 
ticular materials  in  question  were  applied,  the  court 
permitted  it  to  be  given.^ 

But,  notwithstanding  the  apparent  leaning  of  the 
court,  in  favour  of  proof  of  a  credit  to  the  building  by 


U  W.  &  S.  4GG.  2  Kelly  v.  Brown,  8  H.  447. 

»  Church  V.  Davis,  9  W.  304.     Kelly  v.  Brown,  8  II.  44G.     Dick- 
inson College  V.  Church,  1  W  k  S.  400. 


28G  THE  EVIDENCE. 

the  proper  entry  in  tlie  book,  wherever  it  is  possible, 
it  has,  frequently,  been  held  that  other  evidence  of 
such  a  credit  may  be  given,  where  there  is  no  such 
entry. 

"What  such  other  evidence  may  or  must  be,  is  not, 
distinctly,  defined  by  the  decisions.  But  proof,  that 
the  work  was  upon  the  house,  or  that  the  materials 
were  ordered  for  it,  and  delivered  at  it,  appears  to  have 
been  treated  as  making  txj)rima  facie  case  for  the  plain- 
tiff, of  a  credit  to  the  building.  If  there  be  proof  of 
actual  use  of  the  materials  in  the  building,  of  course, 
it  makes  a  still  stronger  case,  though  that  is  not  con- 
clusive. 

For,  as  it  is  the  privilege  of  the  plaintiff  to  supply, 
by  parol  testimon}^,  an  entry  defective  in  this  par- 
ticular, it  is,  of  course,  permitted,  that  the  defendant 
should  rebut  the  allegation  of  a  credit  given  to  the 
house,  whether  there  is  such  an  entry  in  the  books  or 
not.  And,  in  the  effort  to  do  this,  several  questions 
have  arisen  as  to  the  competency  and  sufficiency  of 
proof 

It  has  been  urged,  that  there  can  be  no  credit  to 
the  building,  unless  materials  have  been  delivered  at 
the  building,  by  the  person  furnishing  them. 

In  Hinchman  v.  Graham,  it  was  alleged  that  the 
lumber  was  delivered  at  a  distance  from  the  house. 
But  the  court  do  not  regard  the  objection.  They  say : 
"But,  it  is  said,  that  there  is  a  distinction  between 
materials  delivered  at  or  near  the  building,  or  at  a 
distance  from  it.  But  I  cannot  see  it,  provided  the 
delivery  at  a  distance  was  in  the  usual  course  of  busi- 


THE  EVIDEXCE.  287 

ness,  as  it  was  in  this  case.  It  is  customary  to  pre- 
pare part  of  the  carpenter  s  work  at  the  shop;  why 
then  should  the  boards  be  thrown  dovrn  first  at  the 
building,  in  order  to  be  taken  up  again  and  carried 
to  the  shop  ?  The  delivery  at  one  place  or  another  is 
no  further  important,  than,  as  it  furnishes  evidence 
of  the  purpose  for  which  the  materials  were  sold.  The 
Act  of  Assembly  makes  no  mention  of  the  place  of 
delivery."^ 

In  the  same  case,  Yeates,  J.,  says:  "My  decided 
opinion  is,  that  where  the  materials  are,  hona  fide, 
contracted  for,  with  an  honest  understandine::,  on  the 
part  of  the  seller,  that  they  are  to  be  used  in  the  erec- 
tion thereof,  it  is  of  no  moment,  as  to  the  creation  of 
the  lien,  whether  the  materials  were  delivered,  in  the 
first  instance,  at  or  near  the  building,  or  not,  or 
whether  the  same  were  used  in  the  building,  unless 
the  supplier,  by  some  unequivocal  act  on  his  part, 
shall  evince  that  he  waives  his  lien." 

In  other  cases  it  has  been  urged  as  an  argument 
against  a  credit  to  the  building,  that  the  materials 
furnished  were  not  used  in  its  construction.  Such  a 
fact  may  be  proved,  but  it  has  been  held  not  to  be 
conclusive  against  the  claim.^ 

In  some  cases,  the  proof  has  been,  that  while  none 
of  the  identical  materials  have  actually  gone  into  the 
house,  others,  like  in  character  and  quantity,  owing 
to  substitution  or  confusion,  or  some  peculiar  position 


1  2  S.  &  II.  171.     And  see  Diekinson  College  v.  Cliurch,  1  W.  & 
8.  460.  ''  iSce  ante,  118,  d  saj. 


288  THE  EVIDENCE. 

of  the  parties,  have  taken  the  place  of  those  furnished, 
and  been  used  in  the  erection. 

Thus,  in  one  case,  nine  mechanics  and  material 
men  entered  into  an  agreement  to  build,  together,  nine 
houses,  each  supplying  work  or  materials,  according 
to  his  trade  or  occupation,  with  the  agreement,  that 
no  lien  should  be  filed  or  claim  made,  by  either  part}'-, 
"  against  either  of  the  other  parties,  for  any  labour  or 
materials  furnished  for  or  to  either  of  the  above  men- 
tioned buildings,  except  against  the  party  or  for  the 
buildings  which  each  shall  have  agreed  to  erect,  and 
for  such  labour  and  materials,  only,  as  shall  be  con- 
tained in  such  building  respectively."  One  of  the 
parties  filed  a  claim  for  lumber  against  the  house  of 
another,  and  it  was  held  to  be  sufficient  for  him  to 
prove,  that,  within  the  six  months,  lumber  of  a  like 
kind  to  that  claimed,  furnished  by  him,  had  gone  into 
this  house,  and  that  it  was  not  necessary  for  him  to 
show  a  delivery  of  the  identical  lumber,  upon  the  iden- 
tical dates  mentioned  in  his  books.^ 

In  the  case  of  an  apportioned  claim  this  must,  of 
course,  be  the  case.  It  would  be  impossible  for  a  ma- 
terial man  to  show  into  which  of  several  houses  each 
identical  item  of  materials  had  gone. 

But  even  the  fact,  that  neither  the  materials  fur- 
nished, nor  any  like  them  have  been  used  in  the 
house,  seems  not,  of  itself,  to  be  conclusive  against  the 
claim.^ 


1  Croskey  v.  Coryell,  2  Wh.  223. 

2  Ilinchman  v.  Graham,  2  S.  &  R.  170.     Wallace  v.  Melchoir,  2 
Br.  10-i.     Ante,  118,  and  White  v.  Miller,  G  if.  52. 


THE  EVIDENCE.  289 

Again,  it  has  been  proved,  that  more  materials  have 
been  furnished,  than  could  have  gone  into  the  build- 
ing; but  the  fact  of  a  credit  to  it  being  established,  the 
lien  has  stood. 

But  this  fact,  that  the  materials  were  not  used  in  the 
building,  may  be  accompanied  by  other  circumstances 
which  will  ground  a  defence  against  the  claim. 

In  a  late  case,  Rogers,  J.,  says:  "It  does  not  seem 
to  me,  that  it  is  dealing  unfairly  with  the  plain- 
tiff, to  take  the  account,  as  it  appears  on  his  own 
book.  But,  making  every  allowance  for  the  items 
charged  in  the  intermediate  time,  there  is,  still,  an  ex- 
cess of  materials,  to  no  trifling  amount,  charged,  over 
the  quantity  which  the  defendants  offered  to  show 
could,  by  any  possibility,  be  required  in  the  erection 
of  such  an  edifice.  The  evidence  tended  strongly  to 
show  gross  negligence,  if  not  fraud,  in  what  we  esteem 
to  have  been  the  duty  of  the  vendor.  It  is  a  great 
mistake,  which  cannot  be  too  soon  corrected,  if  any 
suppose,  that  when  a  person  undertakes  to  furnish 
lumber  to  a  contractor,  on  the  credit  of  a  build- 
ing, he  is  relieved  from  inquiring  into  the  nature  of 
the  building  he  trusts,  whether  it  is  brick  or  frame, 
whether  it  is  a  one  or  three  story  house,  or  whether 
it  is  large  or  small:  tliat,  in  short,  he  can  furnish  ma- 
terials enough  to  complete  a  three  story  house  of  the 
largest  dimensions,  when  the  materials  are  intended 
for  a  house  of  the  most  inferior  description.  The  very 
fact,  that  he  credits  the  building,  and  does  not  depend, 
altogether,  on  .the  personal  responsibility  of  the  con- 
tractor, should,  il  would  seem,  immediately  sug- 
19 


290  THE  EVIDENCE. 

gest  the  propriety  of  making  the  necessary  inquiries, 
as  to  the  size,  materials  and  nature  of  the  intended 
erection.  We  do  not  say,  that  a  trifling  excess,  over 
what  the  most  rigid  economy  would  require,  will 
vitiate  the  account;  that  would  be  an  unnecessary, 
or  perhaps,  unjust  restriction;  but  when  it  is  obvious, 
that  it  is  the  result  either  of  negligence  or  fraud,  sound 
policy,  and  a  just  regard  to  the  interest  of  owners,  re- 
quire, that  the  consequences  should  be  visited  on  his 
own  head.  If  any  other  rule  is  adopted,  there  will  be 
no  security  for  owners,  as  the  materials  charged  may, 
and  often  will,  exceed  the  value  of  the  building  itself."^ 

In  this  case,  the  court  below  ruled  out  evidence,  that 
the  claimant  was  a  large  contractor,  and  had  other  con- 
tracts on  hand,  that  the  lumber  claimed  was  not  de- 
livered at  the  building  nor  used  in  it,  but  in  other 
places;  and,  that  it  was  impossible  to  use  so  large  an 
amount  in  the  building.  But  the  court  above  let  in 
the  evidence.  Among  other  things,  however,  it  ap- 
peared, that  the  account  was  against  the  contractor, 
alone,  and  charged  him  with  lumber  of  a  date  prior, 
even,  to  the  date  of  the  contract  for  erecting  the 
building. 

In  a  late  case  three  propositions  are  laid  down  by 
the  court,  which  we  give  in  the  very  words  of  the  opi- 
nion. 

"1.  That  where  materials  for  the  construction  of  a 
building,  contracted  for  in  good  faith,  are  delivered  to 
the  contractor  for  the  building,  a  lien  for  the  price  of 

*  Dickinson  College  v.  Church,  1  W.  &  S.  466. 


THE  EVIDENCE.  291 

the  materials  may  be  filed  against  the  building,  al- 
though the  materials  were  not  used  in  the  construction, 
nor  were  of  the  right  quality  for  a  specific  use,  if  that 
fact  was  unknown  to  the  seller,  and  they  were  of  such 
a  character  as  to  justify  their  use  in  the  construction, 
generally. 

"2.  That  where  the  materials  furnished  are  of  the 
kind  that  would  induce  a  careful,  prudent  and  skilful 
man,  acquainted  with  the  building,  to  believe,  that 
they  could  be  used  in  its  erection,  and  if  thej^  could, 
in  fact,  be  usefully  employed  in  its  construction,  then, 
the  material  man  is  not  bound  to  inquire  into  the 
character  of  the  materials  which  the  contractor  had 
agreed  with  the  owner  of  the  building  to  use  in  its 
construction." 

"4.  That  if  the  materials  were  not  furnished  upon 
the  credit  of  the  building,  but,  upon  that  of  the  con- 
tractor, the  plaintiff  could  not  enforce  his  lien  against 
the  building;  and  even  if  furnished  upon  the  credit  of 
the  building,  if  the  contract  was  unfairly  made,  for  an 
exorbitant  price,  the  plaintiff  could  only  recover,  as 
against  the  building,  what  the  materials  were  fairly 
worth;  and,  that,  taking  a  note  for  the  price,  against 
the  contractor,  would  not,  of  itself,  bar  a  recovery 
against  the  building."^ 

The  time  when  the  materials  were  furnished,  with 
reference  to  the  commencement  or  completion  of  the 
building,  has  been  made  use  of,  to  show,  that  no  credit 
was  given  to  the  building.     Though  not  conclusive, 

»  Odd  Fellows'  Hall  v.  MasBcr,  12  H.  510. 


202  THE  EVIDENCE. 

it  has  been  received,  with  other  evidence,  as  bearing 
upon  the  question.  Of  course,  materials  may  be  fur- 
nished so  long  before  a  commencement,  or  after  a  com- 
pletion, that  the  material  man  could  not  have  had 
the  security  of  the  building  in  his  mind.^ 

The  existence  of  a  special  contract  has  often  been 
urged  against  the  fact  of  a  credit  to  the  building.  So, 
also,  the  taking  of  a  guarantee,  or  a  note,  or  bond,  or 
other  security.  These  cases  we  have  mentioned,  in 
other  parts  of  the  volume.^  As  a  general  rule,  such 
sp)ecial  contract  or  security  will  not  defeat  the  claim. 

In  one  of  the  later  cases,  it  was  held,  that  an  ex- 
press agreement,  on  the  part  of  the  contractor,  that 
no  claim  should  be  filed,  for  the  performance  of  which 
he  had  given  security,  did  not  prevent  a  mechanic 
from  filing  his  claim.  How  far  this  would  have  been 
so  decided,  if  the  mechanic  had  been  a  party  to  the 
agreement,  does  not  appear.^ 

The  plaintiff  must,  of  course,  show  that  his  claim 
was  filed  within  the  six  months,  and  the  defendant 
may,  if  he  can,  establish  the  contrar3\ 

We  now  come  to  treat  of  the  competency  of  wit- 
nesses, in  this  connexion. 

A  contractor  is  not  a  competent  witness  for  the 
owner.  So  completely  is  he  a  party  in  interest,  and, 
so  entirely  is  he  involved  with  the  owner,  that  his 
declarations  are  evidence  against  him.'* 

^  Case  of  the  Olympic  Theatre,  2  Br.  275.  Church  v.  Allison, 
10  B.  416. 

*  Ante,  p.  121,  etc.  '  Young  v.  Lyman,  9  B.  440. 

*  Dickinson  College  v.  Church,  1  W.  &  S.  4G4.  Church  v.  The 
College,  3  W.  &  S.  220. 


THE  EVIDENCE.  293 

It  has  been  held,  that  the  owner  might  make  the 
contractor  competent,  by  a  release  from  all  liability/ 
But,  in  a  later  case,  the  Court  hold,  that  such  a  re- 
lease does  not  discharge  the  contractor  from  liability 
to  the  plaintiff  for  costs,  and,  therefore,  does  not  ren- 
der him  competent.' 

A  contractor  is,  however,  a  competent  witness  for 
the  mechanic,'^  and  so  is  a  sub-contractor.^  So  also,  be- 
fore an  auditor  to  distribute  the  proceeds  of  a  sheriff's 
sale  of  property  affected  by  these  liens,  the  owner  was 
admitted  on  behalf  of  claimants.^ 

The  owner  is  not  a  competent  witness  for  the  con- 
tractor, or  a  co-owner.  If  he  be  owner  at  the  time  of 
the  trial,  he  is  not  a  witness  for  his  grantor,  who  was 
owner  at  the  time  the  claim  was  filed,  and,  therefore, 
made  defendant. 

But,  where  one  who  has  been  the  owner  for  a  time, 
during  the  erection  of  the  building,  has  ceased  to  be 
owner,  and  has  no  interest  at  the  trial,  he  may  be 
sworn  for  the  defendant.*^ 

In  Holden  v.  Winslow,  a  scire  facias  was  issued  on 
a  mechanic's  claim,  against  E.  C.  W.,  with  notice  to 
C.  A.  W.,  terre  tenant.  C.  A.  W.  was  offered  as  a  wit- 
ness, on  the  trial.  It  appeared,  that  he  had  no  in- 
terest in  the  property,  when  the  contract  for  the  work 
was  made,  nor  when  he  was  called  as  a  witness,  but 
had  been  owner  during  part  of  the  intermediate  period. 


'  Ibid.  ■'  Iluworth  V.  Wallact",  2  11.  Il20. 

'  liichabaugh  v.  Dugan,  7  B.  31)4.     Evans  v.  IJrebaii,  ];{   Leg. 

Int.  VI.  *  Odd  Fellows'  Hall  v.  Massoj,  U  11.  510. 

'  Hill's  E.st.  3  Pa.  L.  J.  32:j.         <>  Jones  v.  Shawan,  4  W.  &  S.  257. 


294  THE  EVIDENCE. 

The  Court  say : — "This  is  a  sci.  fa.  on  a  mechanic's 
lien,  and  is,  therefore,  a  proceeding  in  rein,  in  which 
no  one  is  interested,  as  defendant,  except,  as  owner 
of  the  property  against  which  the  lien  is  sought  to  be 
established;  for  that,  only,  is  chargeable  with  either 
debt  or  costs.  The  mere  fact,  that  he  has  notice  to 
appear  and  defend,  does  not  make  him  a  party;  for 
that  may  be  served  on  any  one,  at  the  pleasure  of  the 
plaintiff.  No  one  can  claim  costs,  by  reason  of  such 
notice ;  for  still,  if  he  has  no  interest  in  the  property, 
he  need  not  appear,  and  has  no  right  to  be  heard. 

"Carpenter  A.  Winslow  had  an  interest  in  the  pro- 
perty when  the  suit  was  brought ;  but  he  had  sold  it 
out,  before  the  trial.  He  had  no  interest  when  the 
contract  was  made.  His  connexion  with  the  suit, 
therefore,  arose,  entirely,  out  of  his  relation  to  the 
property,  and  depended  upon  it.  When  that  relation 
ceased,  he  had  no  more  right  to  be  heard,  as  a  party 
in  the  proceeding.  The  fact,  that  the  jury  was  sworn 
as  to  him,  does  not  affect  the  question;  for  he  could 
not  be  heard,  to  object  to  it,  and  could  not  be  affected 
by  it.  There  was  no  contract  relation  binding  him 
to  the  plaintiff  or  affecting  his  competency,  and  he 
was  liable  to  no  debt  or  costs,  and  entitled  to  none, 
in  that  action ;  and  he  was  no  party  to  it,  in  any  pro- 
per sense.  The  Court  was,  therefore,  right  in  de- 
claring him  competent."  ^ 

^  7  H.  452. 


LAW  AND  FACT.  295 


CHAPTER  XIII. 


LAW   AND   FACT. 


After  the  evidence  has  closed,  it  becomes  an  im- 
portant question,  what  is  to  be  left  for  the  decision  of 
the  jury,  and,  what  is  for  the  court  to  decide.  Most 
of  the  points  that  the  plaintiff  must  establish,  in  order 
to  reach  a  verdict,  have,  at  one  time  or  other,  been 
presented  to  the  courts,  with  reference  to  their  posi- 
tion in  this  respect. 

Thus,  whether  any  and  what  labour  has  been  done 
or  materials  furnished  is  a  question  for  the  jury,  and 
whether  they  were  done  or  furnished  on  the  credit  of 
the  house ;  ^  whether  materials  have  been  furnished  in 
pursuance  of  a  special  contract,  or  not;^  and,  if  the 
former,  what  the  contract  is,  if  not  in  writing;^  and 
to  what  part  of  an  account  a  payment  is  to  be  appro- 
priated.^ 

So,  also,  it  has  been  held  to  be  a  question  for  the 
jury,  whether  the  lien  is  filed  in  time;^  and,  in  ascer- 


1  Presbyterian  Ch.  v.  Allison,  10  B.  413. 
»  Bartlett  v.  Kingan,  7  II.  3-il. 
'  Yearsley  v.  Flanigan,  10  II.  489. 
*  Dickinson  College  v.  Church,  1  W.  &  S.  4G2. 
«  Driesbach  v.  Keller,  2  13.  77.     Ilarker  v.  Conrad,  12  S.  &  R. 
301.     Hillary  v.  Pollock,  1  II.  180. 


29 G  LAAA'  AND  FACT. 

taining  this,  to  find,  whether  certain  work  done  is  part 
of  the  original  agreement,  or  is  part  of  the  technical 
erection  or  construction,  or  only  extra,  or  isolated 
work.^ 

The  District  Court  of  Philadelphia,  held,  that,  whe- 
ther a  building  is  within  the  Acts  relating  to  me- 
chanic's liens,  where  the  facts  are  undisputed,  is  a 
question  for  the  court.  They  say: — "  To  hold  other- 
w^ise  would  produce  this  result,  that  one  mechanic  and 
material  man  might  recover  from  the  building,  while 
another,  with  an  equally  good  claim,  might  be  defeated, 
by  the  difierent  conclusions  of  two  different  juries."^ 
But  the  Supreme  Court,  in  error,  reversed  this  deci- 
sion, and  held,  that,  where  such  a  question  was  "diffi- 
cult to  decide,"  it  must  be  left  to  a  jury.'-^ 

And  in  an  earlier  case,  in  the  same  District  Court, 
the  question  seems  to  have  been  treated  as  one  proper 
to  be  disposed  of  by  an  issue.^ 

It  has  been  held  to  be  a  question  for  the  jury,  whe- 
ther a  building  against  which  a  claim  was  filed,  was 
in  a  certain  town,  to  which  the  Act  extended/  Avhe- 
ther  it  is  sufficiently  described  for  identification ;  ^  and 
what  land  is  necessary  for  its  ordinary  and  useful  pur- 
poses.^^ 


1  Holden  v.  Winslow,  6  H.  162.     Presb.  Ch.  v.  Allison,  10  B.  413. 
=  AmstroDg  v.  Ware,  8  Leg.  Int.  124,  8  11.  520, 
^  Perigo  V.  Yanhorn,  2  M.  362.     See  Smith  v.  Nelson,  13  Leg. 
Int.  140. 

*  Telford  V.  Wallace,  141.  »  Y.mxig  v.  Barras,  4  W.  &  S.  407. 

«  Keppel  V.  Jackson,  5  W.  &  S.  320. 


TEE  VERDICT  AND  JUDGMENT.  297 


CHAPTER  XIV. 

OF   THE   VERDICT   AND  JUDGMENT. 

The  verdict  is,  generally,  as  in  other  cases,  for  the 
sum  due.  The  commencement  of  the  building  is  not 
found,  nor  the  extent  of  the  surface,  or  estate  to  be 
affected. 

In  Bayne  v.  Gaylord,  a  certificate  was  given  for  a 
defendant,  for  a  certain  amount,  and  no  objection  ap- 
pears to  have  been  made.^ 

But  to  permit  such  a  course  would  be  wholly  in- 
congruous with  the  character  of  the  proceeding.  It  is 
entirely  in  rem,  the  judgment  is  purely  such,  and  au- 
thorizes no  process  against  the  person.  The  Act  of 
1808,  expressly  provides,  "that  no  judgment,  rendered 
in  any  such  scire  facias,  shall  warrant  the  issuing  an 
execution,  except  against  the  building  or  buildings 
upon  which  the  lien  existed,  as  aforesaid."  And  the 
whole  tenor  of  legislation  and  decision  is  to  the  same 
effect.' 

The  effect  of  a  verdict  or  judgment,  in  this  proceed- 
ing, as  in  others,  is  to  lead  the  court  to  look  favoura- 


»  3  W.  301. 

*  Ilolden  V.  Winslow,  7  II.  451.     Matlack  v.  Deal,  1  M.  2.5 }.     Au- 
shutz  V.  M'Clcllaud,  5  \V.  4.^7.     Leib  v.  Beau,  1  Ash.  208. 


298  THE  VERDICT  AND  JUDGMENT. 

bly  upon  every  presumption  which  tends  to  support 
itj  and  to  show  that  it  was  regularly  reached. 

Thus,  where  it  appeared,  after  a  verdict  for  the 
claimant,  that  the  largest  portion  of  the  materials 
included  in  the  claim  were  furnished  more  than  six 
months  before  the  claim  was  filed,  the  court  say: 
'•  Then,  again,  after  a  trial,  w^e  are  bound  to  presume, 
that  it  was  shown,  that  all  the  lumber  was  famished 
under  one  general  contract ;  and,  if  so,  if  any  part  of 
it  is  within  the  time,  it  is  enough."^ 

In  Lauman's  Appeal,  the  court  held,  that  the  usual 
rule,  that  "a  judgment  though  irregular  on  its  face, 
and,  even  illegally  recovered,  cannot  be  impeached,  col- 
laterally, by  third  persons,  though  lien  creditors  of  the 
defendant,  except  for  fraud  or  collusion,"  applied  to  a 
judgment  on  a  scire  facias,  upon  a  mechanic's  lien.^ 


^  Fergusson  v.  Vollum,  8  Leg.  Int.  64.     And  see  Shaw  v.  Barnes, 
5  B.  20.     Bayer  v.  Reeside,  2  H.  167. 
'  8  B.  477. 


EXECUTION  AND  SALE,  AND  THEIR  EFFECT.  299 


CHAPTER   XV. 

OF  THE  EXECUTION  AND  SALE,  AND  THEIR  EFFECT. 

The  execution,  under  the  earlier  Act,  appears  to 
have  been  di.  fieri  facias} 

The  Act  of  1836  provides  the  writ  of  levari  facias, 
and  prescribes  its  form.  The  Commissioners  say : 
"  "We  suggest,  in  this  section,  that  execution  of  a  judg- 
ment, in  the  proceeding,  shall  be  by  writ  of  levari  facias, 
instead  of  the  fieri  facias,  inquisition,  and  venditioni 
exponas,  which  are  now  necessary.  The  expense  of 
holding  an  inquisition  is  so  great,  that  we  think  it  ought 
not  to  be  encountered,  in  the  case  of  a  mechanic's  lien, 
which  is,  generally,  of  small  amount.  The  delay,  too, 
is  sometimes  very  inconvenient." 

We  have,  heretofore,  referred  to  the  cases,  and  Acts 
of  Assembly,  which  show,  what  estate,  and  what  ex- 
tent of  ground  pass  by  a  sale,  under  such  a  writ. 

As  the  proceedings  prior  to  the  execution  do  not, 
peremptorily,  require  any  exact  description  of  the  pre- 
mises bound  by  the  lien;  and  as  the  claim  seldom  de- 
fines them,  by  metes  and  bounds,  it,  generally,  becomes 
necessar}',  before  issuing  execution,  to  ascertain  their 
true  description,  in  order  to  prejiare  for  a  levy. 

'  Matlack  v.  Hoy,  2  M.  30.  (note.) 


300         EXECUTION  AND  SALE,  AND  THEIR  EFFECT. 

In  most  cases,  particularly  in  a  city,  where  the 
ground  necessary  for  the  ordinary  and  useful  purposes 
of  the  building  is,  generally,  more  distinctly  dehned, 
the  plaintiff  may  procure  his  description  from  the  re- 
cord of  the  deed  to  the  defendant,  or  by  an  ex  ^yarte 
survey  or  measurement.  But,  in  some  cases,  such  a 
course  may  endanger  the  security  of  a  sale,  by  giving 
rise  to  questions  which  may  lead  to  setting  it  aside. 

The  xVct  of  1836,  after  providing  as  we  have,  here- 
tofore, noticed,  for  the  setting  out,  by  commissioners, 
of  tlie  ground  necessary  for  the  ordinary  and  useful 
purposes  of  the  building,  further  enacts  as  follows: 
"If  execution  shall  be  awarded,  for  the  levy  and  sale 
of  any  lot  or  piece  of  ground,  upon  which  a  building 
shall  be  erected  as  aforesaid,  before  the  boundaries  of  the 
lot  or  curtilage  which  ought  to  be  appurtenant  thereto 
shall  be  designated,  it  shall  be  lawful  for  the  court, 
upon  application,  to  stay  such  execution  until  such 
designation  shall  be  made;  and,  thereupon,  order  the 
sale  to  proceed,  in  such  manner,  and  for  such  part  or 
parts,  and  in  such  parcels,  as  shall  be  most  convenient 
for  the  administration  of  equity  among  all  persons  in- 
terested." 

This  designation,  it  will  be  remembered,  is  made, 
upon  the  petition  of  the  owner  or  any  lien  creditor, 
by  commissioners  appointed  by  the  parties  interested, 
or,  if  they  cannot  agree,  by  the  court. 

In  cases  of  a^^portioned  claims,  different  wTits  oi scire 
facias^  and  levari  facias,  are  issued,  for  each  apportioned 
sum,  against  each  building. 

The  Act  of  April  10,  1848,  giving  certain  District 


EXECUTION  AND  SALE,  AND  THEIR  EFFECT.  301 

Courts  jurisdiction,  notwithstanding  the  apportioned 
sums  are  smaller  than  those  of  which  they  have  ju- 
risdiction, expressly  provides:  "That  nothing  herein 
contained  shall  prevent  or  impair  the  issuing  and  ex- 
ecuting of  separate  writs  of  execution,  as  heretofore, 
against  all  or  any  of  such  several  apportionments." 

In  an  early  case,  it  was  held,  by  the  court,  below, 
that  a  levy  and  sale  of  the  property  against  which  the 
claim  was  filed,  discharged  all  liens.  The  Supreme 
Court  in  error,  however,  declined  to  decide  the  ques- 
tion.-"^ 

That  there  was  some  doubt  upon  this  subject,  even 
so  late  as  1836,  appears  from  the  case  of  Anshutz  v. 
M'Clelland,  in  which  the  court  below  decide,  that  a  sale 
under  one  mechanic's  claim  did  not  discharge  another; 
but  the  Supreme  Court,  in  error,  reversed  the  decision. 

In  this  case,  the  Supreme  Court  say:  "It  is  clear, 
that  a  proceeding  and  sale  of  the  house,  upon  any  one 
of  the  liens,  will  release  it  from  the  whole  of  them ; 
and  the  purchaser,  at  the  sheriff's  sale,  will,  accordingly, 
hold  it,  entirely  discharged  therefrom.  This  is  per- 
fectly manifest,  from  the  language  of  the  Act  of  180G ; 
because  it  is  expressly  provided,  that  'if  the  house 
should  not  sell  for  a  sum  of  money  sufficient  to  pay 
all  the  demands  for  work  and  materials,  then,  in  such 
case,  the  same  shall  be  averaged,  and  each  of  the 
creditors  paid  a  sum  proportioned  to  their  several  de- 
mands.' This  shows,  demonstratively,  that  there  can 
be  but  one  sale."^ 

^  Gorgas  v.  Douglass,  C  S.  &  R.  512.  But  see  Lcib  v.  Bean,  1 
Ash.  207.  '  5  W.  487. 


302  EXECUTION  AND  SALE,  AND  THEIR  EFFECT. 

In  Worth  v.  Werth,  the  same  point  was,  in  efiect, 
decided.^  The  language  of  hater  Acts  is  too  expHcit  to 
allow  of  doubt. 

It  has  been  made  a  question,  how  f\ir  this  rule,  that 
liens  are  discharged,  may  be  made  to  yield  to  agree- 
ments between  the  parties. 

In  Twelves  v.  Williams,  certain  persons,  having 
mechanic's  claims  filed,  in  view  of  a  sale  of  the  pre- 
mises, which  was  about  to  be  made  by  the  sheriff, 
under  an  execution,  agreed  with  A.,  who  had  already, 
at  private  sale,  purchased  them,  subject  to  the  claims, 
that  he  should  either  bid  up  the  property,  so  that  the 
proceeds  would  secure  the  claims,  or  buy  it  in,  him- 
self; and  that,  if  he  did  the  latter,  the  sale  should  not 
prejudice  the  claims,  but  that  it  should  be  considered 
as  made  subject  to  them.  A.  bought  the  property, 
and,  subsequently,  made  a  general  assignment  for  the 
benefit  of  creditors.  It  was  held,  that  his  assignees 
were  bound  by  the  agreement  of  A.,  with  the  claim- 
ants, and,  that  the  liens  of  the  latter  continued 
against  the  property,  and  might  be  enforced,  notwith- 
standing the  sherifi^'s  sale,  and  the  assignment.^ 

A  sale,  not  only,  regularly,  discharges  all  liens,  ex- 
cept those  expressly  saved  by  statute,  but  it  puts  a 
stop  to  all  further  steps  in  the  cause.  The  plaintiff 
cannot  proceed,  even  to  ascertain  his  debt,  or  get  his 
costs.  The  cases  under  this  head  we  have  already 
mentioned.^ 

A  sale  does  not,  of  course,  affect  an  adverse  title. 

'  2  R.  151.  »  3  Wh.  485.  »  Ante,  p.  200. 


EXECUTION  AND  SALE,  AND  THEIR  EFFECT.         303 

A  mere  trespasser  could  never  subject  the  freehold  to 
a  lien  under  any  state  of  the  law.^ 

"We  have,  already,  mentioned  that  the  exemption  Act 
does  not  apply  against  the  claims  of  mechanics  and 
material  men.^ 


1  Bickel  V.  James,  7  W.  12.  '  Ante,  p.  186. 


304  DISTRIBUTION  OF  THE  PROCEEDS. 


CHAPTER  XVI. 

OF    THE   DISTRIBUTION   OF   THE   PROCEEDS. 

TuE  9th  section  of  the  Act  of  183G  provides,  that: 
"If  the  building  against  which  any  claim  shall  be 
filed,  as  aforesaid,  or  any  part  of  the  ground  adjacent 
thereto,  shall  be  sold,  by  virtue  of  an  execution,  upon 
any  mortgage  or  judgment,  before  the  extent  of  the 
lien  of  the  claimant  shall  be  ascertained,  as  aforesaid, 
the  court  out  of  which  such  execution  shall  have  issued 
shall  have  power  to  determine  the  rights  of  the  re- 
spective parties,  and  the  apportionment  or  appropria- 
tion of  all  liens,  as  aforesaid,  and,  for  that  purpose,  may 
appoint  an  auditor,  to  inquire  into  and  report  the 
facts,  and  may  decree  distribution  of  the  proceeds,  ac- 
cordingly; or,  upon  the  application  of  any  of  the 
parties,  may  direct  an  issue,  for  the  deteijmination  of 
disputed  facts." 

We  have  already  seen,  that  a  sheriff's  sale  arrests 
all  further  proceedings,  and  that  the  mechanics  and 
material  men,  in  common  with  judgment  creditors, 
are  put  to  the  proceeds.^ 

Upon  a  sale  of  premises  subject  to  mechanic's 
claims  without  reference  to  the  contingency  mentioned 

^  Aute,  p.  301,2. 


DISTRIBUTION  OF  THE  PROCEEDS.  305 

in  the  section  just  referred  to,  an  auditor,  usually,  dis- 
tributes the  proceeds.  It  is  unsafe  for  the  sherifi'  to 
do  so,  because  the  time  of  the  commencement  of  the 
building,  as  well  as  the  extent  of  the  interest  and  sur- 
face affected,  and  other  matters,  are  questions  of  fact, 
which  he  cannot  decide,  without  danger. 

It  is  peculiarly  important,  therefore,  to  ascertain 
what  points  may  be  made  or  urged  before  an  auditor, 
against  a  claim. 

When  the  claim  has  been  pursued  to  judgment,  we 
have  seen,  that  many  questions  are  concluded,  and, 
put  at  rest,  as  against  third  persons,  or  those  claiming 
collaterally. 

But,  before  judgment,  other  lien  creditors  may  avail 
themselves  of  defects  in  a  claim,  in  order  to  increase 
their  own  dividends.  Thus,  whether  the  statements 
of  the  claim,  in  reference  to  the  names  of  the  parties, 
the  locality  of  the  building,  the  nature  or  kind  of  the 
work  done,  or  the  kind  and  amount  of  materials  fur- 
nished, and  the  time,  &c.,  are  correct,  may  be  disputed 
before  the  auditor.  The  Supreme  Court,  in  a  late  de- 
cision, say:  "These  views,  in  affirmance  of  the  valid- 
ity of  the  liens,  make  it  unimportant  to  decide  the 
other  question  made  on  the  argument,  namely,  whether 
subsequent  incumbrances  can  be  admitted  to  oljcct 
deficiencies  in  the  statement,  in  avoidance  of  the  lien. 
But,  upon  this  point,  we  entertain  no  douljt.  Until 
now,  their  right  to  do  so  has  never  been  qucslioiuHl. 

"It  was  permitted,  without  oljjection,  in  tlie  much, 
contested  case  of  Thomas  v.  James,  7  W.  &  S.,  .^81; 
no  one  dreaming  of  a  doubt.     A  claim  filed  is  not  in 
20 


306  DISTRIBUTION  OF  THE  TROCEEDS. 

the  nature  of  a  judgment  pronounced  by  a  court.  It 
is,  as  was  decided  at  tlie  present  term,  but  a  means, 
partaking  of  the  character  of  process,  of  enforcing  a 
statutory  hen.  It  comes  not,  therefore,  within  the 
principle  upon  which  the  doctrine  of  Ilauer's  Appeal, 
5  W.  &  S.  473,  and  other  similar  cases,  are  based. 
This  is  proved  by  the  whole  scope  of  the  Act  of  183G, 
and,  particularly,  by  the  provisions  of  sections  5,  9, 
13,  23,  and  25,  wdiich,  evidently,  contemplate  and 
provide  modes  for  the  interference  of  mortgagees,  judg- 
ment-creditors, and  other  incumbrancers,  having  no 
estate  in  the  premises  bound."  ^ 

It  will  be  found,  upon  examining  the  cases  to  which 
we  refer,  in  this  volume,  that  many  of  the  most  im- 
portant questions  have  been  settled  upon  the  report 
of  an  auditor  appointed  to  make  distribution  of  the 
proceeds  of  property  sold. 

If  it  becomes  proper  for  the  court  to  direct  an  issue, 
or  one  of  the  parties  should  refjuire  it,  it  will  be  al- 
lowed. 

In  the  case  of  Anshutz  v.  M'Clelland,  the  court, 
after  saying,  that  upon  a  sherifi^'s  sale,  a  claimant 
could  not  proceed,  even  for  the  purpose  of  liquidating 
his  claim,  say:  ''If,  however,  there  should  be  any 
controversy  as  to  the  amount  of  the  debts,  v.hich  were 
liens,  coming  to  any  of  the  mechanics  or  others  who 
furnished  materials  for  the  completion  of  the  building, 
after  it  shall  have  been  sold,  and  the  money  arising 
therefrom  brought  into  court,  for  appropriation  or  dis- 

1  Knabb's  Ap.  10  B.  192. 


DISTRIBUTION  OF  THE  PROCEEDS.  307 

tribution,  the  court  have  the  power,  if  it  should  be 
necessary,  to  have  the  amount  ascertained  by  a  jury, 
to  order  a  feigned  issue,  for  that  purpose,  when  all  the 
parties  concerned  in  the  fund  will  have  notice,  and 
an  opportunity  of  being  fully  heard;  which  cannot 
well  be  in  a  scire  facias,  at  the  suit  of  any  one  of  them, 
w^ithout  notice  to  the  others,  which  is  never  given."  ^ 

In  Keppel  v.  Jackson,  a  feigned  issue  was  directed, 
in  order  to  ascertain,  what  land  properly  belonged  to 
the  house. ^ 

There  are  questions  of  some  difficulty  which  might 
arise  in  the  distribution  of  the  proceeds  of  premises 
affected  by  mechanic's  claims,  and  which  do  not  appear, 
from  any  of  the  decided  cases,  ever  to  have  been  pre- 
sented. 

One  of  these  questions  may  arise,  where,  from  some 
defect  of  parties  or  want  of  notice,  a  doubtful  title  or 
estate  is  sold. 

If,  in  such  a  case,  there  be  enough  to  pay  all  liens, 
the  point  would  not,  probably,  arise;  but,  if  the  fund 
falls  short,  we  can  imagine  questions  of  extreme  diffi- 
culty. 

We  have,  in  discussing  the  subject  of  parties,  already 
referred  to  cases,  in  which  it  has  been  intimated  by  the 
court,  that,  though  the  owner,  at  the  time  of  issuing 
the  scire  facias,  need  not  be  made  a  party,  yai,  if  he 
be  not  made  a  party,  and  the  premises  are  sold  under 
the  levari  facias  upon  the  claim,  he  may  be  permitted 
to  make  the  same  defence  in  an  ejectment,  as  lie  miglit 

»  5  W.  492.  ="  3  W.  &  S.  320. 


308  DISTRIBUTION  OF  THE  PROCEEDS. 

have  made  in  the  scire  facias.  And,  though  most  of 
these  decisions  were  under  the  earher  Acts,  such  cases 
may,  perliaps,  arise  under  that  of  1830.^ 

"Where  the  courts,  therefore,  say,  that  a  sale  under 
a  levari  facias,  upon  one  of  several  claims,  arrests  all 
proceedings  under  other  claims,  it  must,  perhaps,  be 
construed  to  refer  to  those  cases  in  which  the  absolute 
interest  and  title  are  sold,  after  a  regular  proceeding, 
against  proper  parties.  • 

For,  if,  by  reason  of  some  defect  in  the  proceeding, 
such  as  the  neglect  to  make  the  right  owner  a  party, 
a  doubtful  or  defective  title  be  sold, — one  against 
which  the  owner  might  make  defence  in  an  ejectment, 
and  a  small  fund  be  produced,  it  would  be  hard  to 
prevent  a  better  sale  by  another  claimant,  who  had 
made  the  proper  parties,  which  would  be  more  pro- 
ductive to  himself  and  to  the  other  creditors. 

In  Anshutz  v.  M'Clellaud,  the  claim  and  scire  facias, 
under  which  the  sale  was  made,  omitted  to  make  the 
owner  a  party;  but  the  claim  and  scire  facias  of  ano- 
ther creditor,  who  claimed  to  go  on  with  his  proceed- 
ing, in  spite  of  the  sale,  was  against  the  owner  as  well 
as  the  contractor.  Here  was  the  very  state  of  facts 
to  raise  the  question.  The  court,  however,  avoided  it, 
by  deciding,  that  the  knowledge  of  the  owner,  that  the 
contractor,  who  was,  in  fact,  also,  lessee  of  the  pre- 
mises, was  building,  made  the  claim  bind  his  whole 
estate,  as  fully  as  if  he  had  been  made  a  party .^ 

If,  however,  the  case  had  been  one  in  which  the 

^  Ante,  p.  216.  ^  5  ^r  49Q 


DISTRIBUTION  OF  THE  PROCEEDS.  309 

lessee,  who  was  in  fact  the  owner,  and  who  under  the 
state  of  the  law  at  that  time  represented  the  whole 
estate,  was  not  made  a  party,  the  question  would,  dis- 
tinctly, have  arisen,  whether  another  lien  creditor, 
who  had  made  the  owner  a  party,  might  not  have 
proceeded- 


>10  COSTS. 


CHAPTER  XVII, 


OF   COSTS. 


The  costs  of  the  proceeding,  like  those  of  the  claim, 
are  payable  out  of  the  proceeds  of  the  premises,  -whe- 
ther they  are  sold  under  the  claim  or  not,  and  when 
they  are  sold,  before  he  has  prosecuted  his  claim  to 
judgment,  the  plaintiff  does  not  lose  his  costs.^  The 
defendants  are  not,  personally,  bound  for  them;  indeed 
the  plaintiff  cannot  proceed,  after  a  sale,  to  recover 
them. 

In  the  case  of  ^latlack  v.  Deal,  a  plaintiff,  in  a  scire 
facias  upon  a  claim,  had  an  award  of  arbitrators  in  his 
favour.  The  defendant  appealed.  Pending  the  ap- 
peal, the  premises  subject  to  the  lien  were  sold,  and 
the  proceeds  consumed  by  prior  liens.  The  defendant 
desired  to  prosecute  the  appeal  still  further,  to  recover 
back  his  costs;  but  the  court  would  not  allow  him  to 
do  so.  They  say: — "The  property,  here,  has  been 
disposed  of  by  operation  of  law,  without  any  default 
on  the  part  of  the  plaintiff.  Should  he  obtain  a  judg- 
ment on  a  verdict,  he  would  be  unable  to  cret  execu- 
tion;  nor  could  the  court  aid  him,  in  recovering  the 
costs  accruing  subsequent  to  the  appeal.     As  to  any 

1  M'Laughlin  v.  Smith,  2  Wh.  122. 


COSTS.  311 

possible  advantage,  then,  *to  the  plaintiff,  further  pro- 
ceedings would  be  altogether  nugatory.  On  the  other 
hand,  by  requiring  the  plaintiff  to  go  to  trial,  the  more 
opportunity  is  afforded  to  the  defendant,  of  endea- 
vouring to  procure  such  a  verdict  as  will  entitle  him 
to  the  aid  of  the  court,  in  recovering  the  costs  paid  on 
the  appeal  and  the  subsequent  costs.  But  there  is  no 
reciprocity,  even,  as  to  the  question  of  costs.  Upon 
the  ground  of  public  convenience,  the  time  of  the  court 
and  a  jury  ought  not  to  be  occupied  by  the  trial  of  an 
issue  whose  direct  and  appropriate  object  has  been 
legitimately  defeated.  The  issue  was  not  intended  to 
try  the  mere  collateral  and  minor  question  now  pro- 
posed; much  less  was  it  framed  for  the  exclusive 
benefit  of  only  one  of  the  parties.  Were  the  court  at 
liberty  to  weigh  the  conflicting  equities,  it  would  be 
manifest,  that  there  would  be  much  more  of  hardship 
upon  a  plaintiff,  in  compelling  him  to  prepare  for  and 
go  through  a  trial,  in  such  a  case,  than,  upon  a  defen- 
dant, in  staying  the  proceedings.  So  far  as  the  plain- 
tiff advanced,  he  was  sustained  by  the  proper  tribunal, 
and  he  is  obliged  to  lose  the  security  to  which  he  had 
trusted.  The  defendant's  right  to  appeal  rested  upon 
the  payment  of  costs,  as  a  condition.  The  due  course 
of  the  law,  and  not  the  Act  of  the  plaintiff,  has  ren- 
dered the  appeal  abortive.  When  the  costs  were  paid, 
there  was  a  legal  adjudication  in  regard  to  them.  An 
appeal  as  to  them  was  but  incidental.  It  must  share 
the  fate  of  the  principal  subject,  upon  which  it  was 
dependent."  ^ 

'  1  M.  255. 


312  THE  PERSONAL  REMEDY. 


CHAPTER   XVIII. 


OF  THE  PERSONAL   REMEDY. 


It  -svill  be  remembered,  that,  in  the  earlier  decisions, 
the  precise  line  of  distinction,  between  the  personal 
remedy  and  the  proceeding  in  rem  was  not  very  clearly 
defined. 

The  Act  of  1836  is  more  distinct  and  definite,  in 
these  respects.  It  leaves  no  doubt  with  reference  to 
the  character  of  the  proceeding  by  claim,  scire  facias 
and  levari  facias,  directed  solely  against  the  realty, 
and  then  expressly  enacts  as  follows :  "  Provided,  that 
nothing  in  this  Act  contained  shall  be  construed  to 
impair,  or  otherwise  affect  the  right  of  any  person,  to 
w^hom  any  debt  may  be  due  for  work  done  or  mate- 
rials furnished,  to  maintain  any  personal  action  against 
the.  owner  of  the  building,  or  any  other  person  liable 
therefor,  to  recover  the  amount  of  such  debt." 

The  Commissioners  say,  in  regard  to  this  section. 
"Sect.  28  is  new  in  terms.  Although,  perhaps,  no 
doubt  has  been,  heretofore,  expressed  of  the  right  of 
mechanics  and  material  men  to  bring  personal  actions 
to  recover  the  amount  due  to  them,  notwithstanding 
the  remedy  given  by  the  Act  of  180G;  yet,  inasmuch 
as  an  Act  of  the  Legislature  has  declared,  that,  when 
a  remedy  is  provided  by  an  Act  of  Assembly,  nothing 


THE  PERSONAL  EEMEDY.  313 

sliall  be  done  as  at  common  law,  it  seemed  proper  to 
reserve  to  these  creditors,  in  express  terms,  a  method 
of  proceeding,  without  which,  they  may,  in  some  cases, 
be  unable  to  recover  the  amount  due  them. 

While  the  decisions,  to  which  we  have  heretofore 
referred,  appear  to  establish  the  doctrine,  that  a  judg- 
ment confessed  by  the  contractor  to  the  creditor,  or 
even  a  judgment  obtained  adversely,  is  not  a  bar  to 
the  proceeding  in  rem,  this  section  establishes,  fully? 
that  the  latter  does  not  stand  in  the  way  of  a  recovery 
against  the  person.  The  two  remedies  are  cumula- 
tive. 

Where  the  owner,  himself,  employs  the  mechanics 
and  orders  the  materials,  he  is,  of  course,  himself,  per- 
sonally liable.  But  if  he  builds  through  the  agency 
of  an  ordinary  contractor,  he  is  not  responsible. 

This  is  clearly  settled  by  a  late  decision,  in  the  Dis- 
trict Court,  for  the  city  and  county  of  Philadelphia, 
in  which  Hare,  J.,  in  delivering  the  opinion  of  the 
court,  says : — "  This  action  was  brought  against  the 
personal  representatives  of  the  late  Mrs.  Fassit,  to 
recover  for  lumber,  which  was  alleged  to  have  been 
sold  to  her  during  her  life  time.  It  appeared,  at  the 
trial,  that  the  lumber  was  not  ordered  by  her,  but  by 
the  carpenter  whom  she  employed  to  do  the  job,  in 
which  it  was  used;  and  the  only  question  was,  as  to 
whether  he  had  authority  to  make  the  purchase,  in 
her  name,  and  bind  her  to  pay  for  it.  Tiie  jury  were 
instructed,  that  no  liability  could  exist  under  these  cir- 
cumstances, unless  on  the  ground  of  agency,  whidi 
might  Ijc,  either  express  or  implied,  but  could  not  l)e 


314  THE  PERSONAL  REMEDY. 

presumed,  without  evidence  of  its  existence.  They 
were  further  told,  that  the  employment  of  ca  contractor 
or  jobber  to  do  a  particular  piece  of  work,  does  not 
render  him  an  agent,  nor  authorize  him  to  pledge  the 
credit  of  his  employer,  even  for  the  purchases  neces- 
sary for  the  completion  of  the  job,  and  rather  implies, 
that  payment  to  him  would  be  a  complete  fulfilment 
and  satisfaction  of  the  obligation  incurred  by  the  em- 
ployer. But,  they  were,  at  the  same  time,  reminded, 
that  an  agency  may  be  coupled  with  a  contract;  and 
the  question  whether  it  was  or  not,  in  this  instance, 
was  left  to  them,  on  the  evidence.  They  found  a 
verdict  for  the  defendant,  which  we  think  ouglit  to 
stand,  in  point  both  of  law  and  of  fact.  The  excep- 
tion which  has  been  made,  in  the  case  of  Mechanics' 
Liens,  to  the  common  law  principle,  that  a  contract 
imposes  no  liability,  save  as  between  the  parties  con- 
tracting, is  quite  wide  enough,  though  confined  to 
the  building  itself,  and  not  extending  beyond  six 
months  from  the  period  at  which  the  work  is  done, 
unless  dul}^  and  openly  prosecuted.  Disastrous  con- 
sequences would  follow,  were  it  to  become  the  rule, 
and  were  every  man  who  bargains  with  another,  to  be 
made  answerable  for  all  the  obligations  incurred  by 
the  latter,  in  carrying  out  the  bargain :  not  merely,  in  his 
house  but  in  his  person;  not  only,  for  six  months,  but 
for  an  indefinite  period.  It  must  be  remembered,  that 
where  such  a  liability  exists,  at  all,  it  cannot  be  con- 
fined to  one  purchase,  nor  to  any  one  particular  trans- 
action, but,  necessarily,  extends  to  every  act  of  the 
agent,  which  is  not,  on  its  face,  a  plain  departure  from 


THE  PERSONAL  REMEDY.  315 

his  agency.  Thus,  if  Mrs.  Fassit  had  been  liable  to 
the  plaintiff,  in  this  case,  she  would  have  been  equally 
so  to  every  lumber-merchant  in  town  from  whom  the 
carpenter  whom  she  employed  to  shingle  her  house 
thought  fit  to  buy  shingles,  in  her  name,  whether  the 
materials  thus  purchased  actually  came  to  her  use  or 
not.  Men  do  not  suppose,  nor  is  there  any  thing  in 
the  course  of  business  to  inform  them,  that  the  em- 
ployment of  a  workman  engages  their  credit  and 
estate  to  make  good  his  contracts ;  and  their  liability 
should  not  be  carried  beyond  the  natural  and  legiti- 
mate consequence  of  their  acts,  upon  a  mere  pre- 
sumption. The  employment  of  the  carpenter,  to 
shingle  the  house,  was  proved,  in  this  case,  clearly 
enough;  but  his  authority  to  act  as  agent  was  wholly 
uncertain;  and  the  jury  but  fulfilled  their  duty,  in 
refusing  to  find  that,  afiirmatively,  which  was,  at  the 
best,  conjecture." 

A  treatise  upon  the  form  and  results  of  the  personal 
remedy,  in  ordinary  cases,  is,  of  course,  not  within  the 
design  of  this  treatise.  "We  have  merely  desired  to 
refer,  in  this  volume,  to  certain  peculiar  relations  to 
each  other  of  the  two  proceedings. 


APPENDIX. 


ACTS    OF   ASSEMBLY. 

Act  of  1st  April,  1803,  Pamph.  L.  591. 

(Repealed  17tli  Marcli,  1800.) 

An  Act  securing  to  mechanics  and  others  payment  for  their 
labour  and  materials  in  erecting  any  house  or  other  building 
within  the  city  of  Philadelphia,  the  district  of  Southwark, 
and  the  toivnsliip  of  the  Northern  Liberties. 
Sect.  1.  All  and  every  dwelling-house  or  other  building 
hereafter  constructed  and  erected  within  the  city  of  Phila- 
delphia, the  district  of  Southwark,  and  the  township  of  the 
Northern  Liberties,  shall  be  subject  to  the  payment  of  the 
debts  contracted  by  the  owner  or  owners  thereof,  for  or  by 
reason  of  any  work  done  or  materials  found  and  provided  by 
any  brickmakcr,  bricklayer,  stonecutter,  mason,  lime  merchant, 
carpenter,  painter  and  glazier,  ironmonger,  blacksmith,  plas- 
terer and  lumber  merchant,  or  any  other  person  or  persons 
employed  in  furnishing  materials  for,  or  in  the  erecting  and 
constructing  such  house  or  other  building,  before  any  other 
lien  which  originated  subsequent  to  the  commencement  of  tlic 
said  house  or  other  building ;  but  if  such  house  or  other  build- 
ing should  not  sell  for  a  sum  of  money  sufficient  to  pay  all 
the  demands  for  work  and  materials,  then,  and  in  sucli  case, 
the  same  shall  be  averaged,  and  the  said  creditors  paid  an 
equal  sum  or  proportion  in  the  dollar:  Provided  always,  that 
no  such  debt  for  work  and  materials  shall  remain  a  lion  on 
the  said  houses  or  other  buildings  longer  than  two  years  from 
the  commencement  of  the  building  of  the  same,  unless  an 


318  APPENDIX. 

action  for  the  recovery  thereof  be  instituted  or  the  claim  filed 
"within  six  months  after  performing  the  ■\\'ork  or  furnishing  the 
materials  aforesaid,  in  the  office  of  the  prothonotary  of  the 
county  where  such  houses  or  other  buildings  lie. 

Sect.  2.  This  Act  shall  be  and  continue  in  force  for  three 
years  from  the  passing  thereof,  and  from  thence  to  the  end 
of  the  next  session  of  the  general  assembly,  and  no  longer. 


Act  of  17th  March,  180C,  4  Sm.  L.  300. 

An  Act  securing  to  mechanics  and  others  'payment  for  their 
labour  and  materials  in  erecting  any  house  or  other  luild- 
ing  u'ithin  the  city  and  county  of  Philadelphia. 

Sect.  1.  All  and  every  dwelling-house  or  other  building 
hereafter  constructed  and  erected  within  the  city  and  county 
of  Philadelphia  shall  be  subject  to  the  payment  of  the  debts 
contracted  for  or  by  reason  of  any  work  done  or  matei'ials 
found  and  provided  by  any  brickmaker,  bricklayer,  stonecut- 
ter, mason,  lime  merchant,  carpenter,  painter  and  glazier, 
ironmonger,  blacksmith,  plasterer  and  lumber  merchant,  or 
any  other  person  or  persons  employed  in  furnishing  mate- 
rials for,  or  in  the  erecting  and  constructinfr  such  house  or 
other  building,  before  any  other  lien  which  originated  subse- 
quent to  the  commencement  of  the  said  house  or  other  biiild- 
ina;:  but  if  such  house  or  other  buildinfj;  should  not  sell  for  a 
sum  of  money  sufficient  to  pay  all  the  demands  for  work  and 
materials,  then,  and  in  such  case,  the  same  shall  be  averaged, 
and  each  of  the  creditors  paid  a  sum  proportioned  to  their 
several  demands:  Provided  always,  that  no  such  debt  for 
work  and  materials  shall  remain  a  lien  on  the  said  houses  or 
other  buildings  longer  than  two  years  from  the  commence- 
ment of  the  building  thereof,  unless  an  action  for  the  reco- 
very of  the  same  be  instituted  or  the  claim  filed,  within  six 
months  after  performing  the  work  or  furnishing  the  materials, 
in  the  office  of  the  prothonotary  of  the  county:  And  provided 
also,  that  each  and  every  person  having  received  satisfaction 
for  his  or  their  debt,  for  which  a  claim  has  been  or  shall  be 
filed  or  action  brought  as  aforesaid,  shall,  at  the  request  of 


STATUTES.  319 

any  person  interested  in  the  building  on  -wliich  the  same  "was 
a  lien,  or  in  having  the  same  lien  removed,  or  of  his,  her  or 
their  legal  representatives,  on  payment  of  the  costs  of  the 
claim  or  action,  and  on  tender  of  the  costs  of  office,  for  en- 
tering satisfaction  within  six  days  after  such  request  made, 
enter  satisfaction  of  the  claim  in  the  office  of  the  prothono- 
tary  of  the  court  "where  such  claim  "was  or  shall  be  filed  or 
such  action  brought,  which  shall,  for  ever  thereafter,  discharge, 
defeat  and  release  the  same ;  and  if  such  person,  having  re- 
ceived satisfaction  as  aforesaid,  by  himself  or  his  attorney, 
shall  not,  "within  six  days  after  request  and  payment  of  the 
costs  of  the  claim  or  action,  and  tender  as  aforesaid  by  him- 
self or  his  attorney  duly  authorized,  enter  satisfaction  as 
aforesaid,  he,  she  or  they,  neglecting  or  refusing  so  to  do,  shall 
forfeit  and  pay  unto  the  party  or  parties  aggrieved  any  sum 
of  money  not  exceeding  one  half  of  the  debt  for  Avhich  the 
claim  "was  filed  or  action  brought  as  aforesaid,  to  be  sued  for 
and  demanded  by  the  person  or  persons  damnified,  in  like 
manner  as  other  debts  are  no"^'  recoverable  by  law  of  this 
Commonwealth. 

Sect.  2.  That  the  Act,  entitled  "An  Act  securing  to  me- 
chanics and  others  payment  for  their  labour  and  materials,  in 
erecting  any  house  or  other  building  within  the  city  of  Diila- 
delphia,  the  district  of  Southwark  and  the  tOAvnship  of  the 
Northern  Liberties,"  passed  the  first  day  of  April,  one  thou- 
sand eight  hundred  and  three,  be  and  the  same  is  hereby  re- 
pealed, excepting  as  it  applies  to  liens  cognizable  by  the  said 
recited  Act  previous  to  the  passing  of  this  Act,  and  to  actions 
now  pending  under  the  said  recited  Act.  To  such  liens  and 
actions  (and  none  other)  it  shall  continue  in  force  to  the  final 
determination  of  the  same. 

Act  of  28tli  Marcli,  1808,  4  Sm.  L.  528. 

A  supplement  to  an  Act,  entitled  '"''An  Act  securing  to  me- 
chanics and  otliers  payment  for  their  labour  and  materials 
in  erectiufj  any  house  or  other  building  tvitliin  the  city  and 
county  of  Philadelphia." 
Sect.  1.  The  Act,  entitled  "An  Act  securing  (o  mechanics 

and  others  payment  for  their  labour  and  materials  in  erect- 


320  AprENDix. 

ing  any  house  or  other  buihling  within  the  city  and  county  of 
Philadelphia,"  passed  ]\[arch  seventeenth,  one  thousand  eight 
hundred  and  six,  shall  be,  and  the  same  is,  hereby  declared  to 
be  in  full  force  and  operation  in  the  borough  of  Erie,  in  the 
county  of  Erie,  the  borough  of  Lancaster,  in  the  county  of 
Lancaster,  and  the  borough  of  Pittsburgh,  in  the  county  of 
Allegheny ;  and  mechanics  and  others,  and  the  said  boroughs, 
respectively,  shall  have  like  remedy,  under  the  said  Act,  for 
securing  the  payment  of  their  labour  and  materials,  in  erect- 
ing any  house  or  other  building,  within  the  said  boroughs,  re- 
spectively. 

Sect.  2.  That  in  all  cases  of  lien  created  by  this  Act,  or 
the  Act  to  which  this  is  a  supplement,  or  the  Act  passed  the 
jBrst  day  of  April,  anno  Domini  one  thousand  eight  hundred 
and  three,  entitled  "An  Act  securing  to  mechanics  and  others 
payment  for  their  labour  and  materials  in  erecting  any  house 
or  other  building  within  the  city  and  county  of  Philadelphia," 
the  person  having  a  claim  filed,  agreeably  to  their  provisions, 
may,  at  his  election,  proceed  to  recover  it,  by  personal  action, 
according  to  the  nature  of  the  demand  against  the  debtor,  his 
executors  or  administrators,  or  by  scire  facias  against  the 
debtor  and  owner  of  the  building,  or  their  executors  or  ad- 
ministrators;  and,  where  the  proceeding  is  by  scire  facias, 
the  writ  shall  be  served,  in  like  manner  as  a  summons,  upon 
the  persons  named  therein,  if  they  can  be  found  within  the 
county  in  which  the  building  is  situate,  or  are  resident  therein, 
or  if  they  cannot  be  found,  and  are  not  resident  in  such 
county,  by  fixing  a  copy  of  the  writ  upon  the  door  of  the 
building  against  which  the  claim  is  filed,  and,  upon  the  return 
of  service  and  failure  of  the  defendants  to  appear,  the  court 
shall  render  judgment,  as  in  case  of  a  summons;  but  if  they 
or  either  of  them  appear,  they  may  plead  and  make  defence, 
and  the  like  proceedings  shall  be  had  as  in  personal  actions 
for  the  recovery  of  debts:  Provided,  that  no  judgment  ren- 
dered in  any  such  scire  facias  shall  warrant  the  issuing  an 
execution,  except  against  the  building  or  buildings  upon  which 
the  lien  existed  as  aforesaid. 


STATUTES.  321 

Act  of  21st  January,  1813,  Paniph.  L.  38. 

Jin  Act  extending  an  Act  entitled  "  An  Act  securing  to  me- 
chanics and  others  ijayment  for  their  labour  and  materials 
in  erecting  any  house  or  other  building  within  the  city  and 
county  of  Philadelphia"  to  the  borough  of  Beaver  in  the 
county  of  Beaver. 

Sect.  1.  The  Act,  entitled,  "An  Act  securing  to  mechanics 
and  others  payment  for  their  labour  and  materials  in  erect- 
ing any  house  or  other  building  within  the  city  and  county 
of  Philadelphia,"  passed  March  the  seventeenth,  one  thou- 
sand eight  hundred  and  six,  with  its  supplement,  passed  the 
twenty-eighth  of  March,  one  thousand  eight  hundred  and  eight, 
shall  be,  and  the  same  are  hereby  declared  to  be  in  full  force 
and  operation  in  the  borough  of  Beaver,  in  the  county  of 
Beaver;  and  mechanics  and  others  in  the  said  borough,  re- 
spectively, shall  have  like  remedy,  under  the  said  Acts,  as 
though  they  were  herein  enacted  at  full  length. 

Act  of  1st  March,  1815,  6  Sm.  L.  250. 
An  Act  extending  an  Act  entitled  ^^An  Act  securing  to  me- 
chanics and  others  payment  for  their  labour  and  materials 
in  erecting  any  house  or  other  building  within  the  city  and 
county  of  Philadelphia,'"  to  the  borough  of  Marietta,  in  the 
county  of  Lancaster,  and  the  borough  of  Harrisburg,  in 
the  county  of  Dauphin. 

Sect.  1.  From  and  after  the  passage  hereof,  the  Act  en- 
titled "An  Act  securing  to  mechanics  and  others  payment 
for  their  labour  and  materials  in  erecting  any  house  or  other 
building  within  the  city  and  county  of  Philadelphia,"  passed 
March  the  seventeenth,  one  thousand  eight  hundred  and  six,, 
with  its  supplement,  passed  the  twenty-eighth  day  of  March, 
one  thousand  eight  hundred  and  eight,  shall  be,  and  the  same 
are  hereby  declared  to  be  in  full  force  and  operation  in  the 
borough  of  Marietta,  in  the  county  of  Lancaster,  and  the 
borough  of  llarrisburg,  in  the  county  of  Dauphin ;  and  me- 
chanics and  others  in  the  said  boroughs,  respectively,  shall 
have  like  remedy,  under  tbe  buid  Acts,  as  though  they  were 
herein  enacted  at  full  length. 
21 


322  APrENDix. 

Act  of  22d  March,  1817,  G  Sm.  L.  445. 

An  Act  extending  the  benefits  of  an  Act  entitled  ^'- An  Act 
securing  to  mechanics  and  others  payment  for  their  labour 
and  materials  in  erecting  any  house  or  other  building  in 
the  city  and  county  of  Philadelphia"  to  the  mechanics  and 
others  of  the  borough  of  Heading,  of  the  borough  of  West- 
chester^ and  of  the  toiV7is  and  villages  adjacent  to  the  city 
of  Pittsburg y  and  to  the  counties  of  Lancaster,  Montgomery, 
York,  Dauphin,  FranMin,  and  Lebanon. 

Sect.  2.  That  the  Act  entitled  "An  Act  securing  to  me- 
chanics and  others  payment  for  their  labour  and  materials  in 
erecting  any  house  or  other  building  -within  the  city  and 
county  of  Philadelphia,"  passed  March  the  seventeenth,  one 
thousand  eight  hundred  and  six,  and  the  second  section  of  a 
supplement  to  the  said  Act,  passed  March  the  twenty-eighth, 
one  thousand  eight  hundred  and  eight,  be,  and  the  same  are, 
hereby  declared  to  be  in  force  in  the  borough  of  Reading,  in 
the  county  of  Berks,  in  the  borough  of  Westchester,  in  the 
county  of  Chester,  and  in  the  towns  of  Alleghany,  Birming- 
ham, Sidneyville,  Bclinstown,  Byardstown,  Lawrenceville, 
and  Wilkinsburg,  in  the  county  of  Alleghany,  and  all  other 
towns  and  vilhages  that  now  are  or  may  be  laid  out  within 
ten  miles  of  the  line  of  the  city  of  Pittsburg,  and  in  every 
part  of  the  counties  of  Lancaster,  Montgomery,  York,  Dau- 
phin, Franklin,  and  Lebanon;  and  mechanics  and  others  in 
said  places  shall  have  like  remedy,  under  the  said  Act,  and  the 
said  second  section  of  the  supplement  thereto,  for  securing 
and  recovering  payment  for  their  labour  and  materials  for 
erecting  any  house  or  other  building  within  the  said  places. 

Act  of  24tli  March,  1818,  7  Sm.  L.  119. 

An  Act  extending  the  benefits  of  an  Act  entitled  ^^  An  Act 
securing  to  mechanics  and  others  payment  for  their  labour 
and  materials  in  erecting  any  house  or  other  building  in 
the  city  and  county  of  Philadelphia^'  to  the  mechanics  and 
others  of  the  counties  of  Cumberland,  Northumberland,  Co- 
lumbia, and  Beaver,  and  for  other  purposes. 


STATUTES.  323 

Sect.  1.  That  the  Act,  entitled  "An  Act  securing  to  me- 
chanics and  others  payment  for  their  labour  and  materials  in 
erecting  any  house  or  other  building  within  the  city  and 
county  of  Philadelphia,"  passed  March  the  seventeenth,  one 
thousand  eight  hundred  and  six,  and  the  second  section  of  a 
supplement  to  the  said  Act,  passed  March  the  twenty-eighth, 
one  thousand  eight  hundred  and  eight,  be  and  the  same  are 
hereby  declared  to  be  in  force  in  the  counties  of  Cumberland, 
Northumberland,  Columbia,  and  Beaver ;  and  mechanics  and 
others  within  the  said  counties  shall  have  like  remedy,  under 
the  said  Act,  and  the  second  section  of  the  supplement  thereto, 
for  securing  and  recovering  payment  for  their  labour  and 
materials  for  erecting  any  house  or  building  within  the  said 
counties. 

Sect.  2.  The  several  provisions  of  the  Act  of  assembly  of 
this  commonwealth,  passed  the  seventeenth  day  of  March,  one 
thousand  eight  hundred  and  six,  entitled  "An  Act  securing  to 
mechanics  and  others  payment  for  their  labour  and  materials 
in  erecting  any  house  or  other  building  within  the  city  and 
county  of  Philadelphia,"  and  of  the  second  section  of  the 
supplement  thereto,  passed  the  twenty-eighth  day  of  March, 
in  the  year  one  thousand  eight  hundred  and  eight,  are  hereby 
extended  to  any  person  or  persons  furnishing  curbstone  for 
the  pavement  of  any  house  or  building  erected  within  the 
meaning  of  the  said  Act ;  and  the  said  person  so  furnishing 
curbstone  as  aforesaid  shall  enjoy  all  the  benefits  and  advan- 
tages of  the  said  Act,  and  the  supplement  thereto,  as  fully 
and  effectually  as  if  they  had  been  therein  particularly  men- 
tioned. 

Act  of  7tli  March,  1821,  Pampli.  L.  82. 
A71  Act  extending  an  Act,  entitled  ^'■An  Act  securing  to  me- 
chanics and  others  payment  for  their  labour  and  materials 
in  erecting  any  house  or  other  luilding  within  the  city  and 
county  of  Philadelphia,"  to  the  counties  of  Delaware,  Bucks, 
Luzerne,  and  Mifflin. 

Sect.  1.  From  the  passage  hereof,  the  Act  entitled  "An 
Act  securing  to  mechanics  and  others  payment  for  t])cir  labour 
and  materials  in  erecting  any  house  or  other  building  within 


324  APPENDIX. 

tlio  city  and  county  of  Philadclpliia,"  passed  Marcli  seven- 
teenth, one  thousand  eight  hundred  and  six,  Avith  its  supple- 
ment, passed  the  twenty-eighth  day  of  March,  one  thousand 
eight  hundred  and  eight,  shall  be,  and  the  same  are,  hereby 
declared  to  be  in  full  force  and  operation  in  the  counties  of 
Delaware,  Bucks,  Luzerne,  and  Mifflin ;  and  mechanics  and 
others  in  said  counties  shall  have  like  remedy,  under  said 
Acts,  as  though  they  were  herein  enacted  at  full  length. 

Act  of  11th  April,  1825,  Pamph.  L.  1G2. 

An  Act  extending  the  benefits  of  an  Act  entitled  "An  Act 
securing  to  mechanics  and  others  faymcnt  for  their  labour 
and  materials  in  erecting  any  house  or  other  building  in 
the  city  and  county  of  Philadelphia,"  to  the  mechanics  and 
others  of  the  counties  of  Schuylkill,  Berks,  Erie,  Somerset, 
and  Venango,  and  for  other  pwyoses. 

Sect.  1.  That  the  Act  entitled  "An  Act  securing  to  me- 
chanics and  others  payment  for  their  labour  and  materials  in 
erecting  any  house  or  other  building  within  the  city  and 
county  of  Philadelphia,"  passed  March  the  seventeenth,  one 
thousand  eight  hundred  and  six,  and  the  second  section  of  a 
supplement  to  the  said  Act,  passed  March  the  twenty-eighth, 
one  thousand  eight  hundred  and  eight,  be,  and  the  same  are 
hereby  declared  to  be,  in  force  in  the  counties  of  Schuylkill, 
Berks,  Erie,  Somerset,  and  Venango;  and  mechanics  and 
others  in  the  said  counties  shall  have  like  remedy,  under  the 
said  Act,  and  the  second  section  of  the  supplement  thereto, 
for  securing  and  recovering  payment  for  their  labour  and 
materials  for  erecting  any  house  or  other  building  within  the 
said  counties. 

Act  of  10th  April,  1826,  Pamph.  L.  345. 

An  Act  extending  the  benefits  of  an  Act  entitled  "An  Act 
securing  to  mechanics  and  others  payment  for  their  labour 
and  materials  in  erecting  any  house  or  other  buildiiig  in 
the  city  and  county  of  Philadelphia,"  to  the  mechanics  of 
the  counties  of  Crawford,  Lycoming,  Centre,  Clearfield,  and 
Indiana. 


STATUTES.  325 

Sect.  1.  That  the  Act  entitled  "An  Act  securing  to  me- 
chanics and  others  payment  for  their  labour  and  materials  in 
erecting  any  house  or  other  building  within  the  city  and 
county  of  Philadelphia,"  passed  March  seventeenth,  one  thou- 
sand eight  hundred  and  six,  and  the  second  section  of  the 
supplement  to  the  said  Act,  passed  March  twenty-eighth,  one 
thousand  eight  hundred  and  eight,  be,  and  the  same  are 
hereby  declared  to  be,  in  force  in  the  counties  of  Crawford, 
Lycoming,  Centre,  Clearfield,  and  Indiana;  and  the  mechanics 
and  others  in  said  counties  shall  have  like  remedy,  under  the 
said  Act,  and  the  said  second  section  of  the  supplement  thereto, 
for  securing  and  recovering  payment  for  their  labour  and  ma- 
terials for  erecting  any  house  or  other  building  within  said 
counties. 

Act  of  IGth  April,  1S27,  Pamph.  Laws,  446. 

A  supplement  to  the  Act  entitled  ^^  An  Act  securing  to  me- 
chanics and  others  jjcLy^i'iint  for  their  labour  and  mate- 
7'ials  in  erecting  any  house  or  other  building  within  the  city 
and  county  of  Philadelphia,''  and  for  other  purposes. 

Sect.  1.  From  the  passage  hereof  the  Act  entitled  "  An  Act 
securing  to  mechanics  and  others  payment  for  their  labour  and 
materials  in  erecting  any  house  or  other  building  within  the 
city  and  county  of  Philadelphia,"  passed  the  seventeenth  of 
March,  one  thousand  eight  hundred  and  six,  with  its  supple- 
ment, passed  the  twenty-eighth  day  of  March,  one  thousand 
eight  hundred  and  eight,  shall  be,  and  the  same  is  hereby  de- 
clared to  be,  in  full  force  and  operation  in  the  county  of 
Union;  and  mechanics  and  others  in  said  county  shall  have 
like  remedy,  under  said  Acts,  as  though  they  were  herein 
enacted  at  full  length. 

Act  of  4th  February,  1830,  Pamph.  L.  37. 

An  Act  extending  an  Act  entitled  ^^An  Act  securing  to  me- 
chanics and  others  payment  for  their  labour  and  materials 
in  erecting  any  house  or  other  building  loithin  the  city  and 
county  of  Philadelphia,''  to  the  borough  of  Pa  don  in  Nurili- 
ampton  county. 


326  APPENDIX. 

Sect.  1.  From  and  after  the  passage  of  this  Act,  the  Act  en- 
titled "An  Act  securing  to  mechanics  and  others  payment  for 
their  lahour  and  material  in  erecting  any  house  or  other  build- 
ing -within  the  city  and  county  of  Philadelphia,"  passed  the 
seventeenth  day  of  March,  one  thousand  eight  hundred  and 
six,  -with  its  supplement,  passed  the  twenty-eighth  day  of 
March,  one  thousand  eight  hundred  and  eight,  shall  be,  and 
the  same  are  hereby  declared  to  be,  in  full  force  and  opera- 
tion in  the  borough  of  Easton,  in  the  county  of  Northampton; 
and  mechanics  and  others  in  the  said  borough  shall  have  like 
remedy,  under  said  Acts,  as  though  they  were  herein  enacted 
at  full  length. 

Act  of  28tli  January,  1831,  Pamph.  L.  3G. 

An  Act  extending  the  provhions  of  the  lien  Icnvs  to  the  plumb- 
ers of  the  citjj  and  county  of  Philadelphia. 
Sect.  1.  From  and  after  the  passing  of  this  Act  the  several 
provisions  of  the  Act  of  the  seventeenth  of  March,  one  thou- 
sand eight  hundred  and  six,  entitled  "  An  Act  securing  to 
mechanics  and  others  payment  for  their  labour  and  materials 
in  erecting  any  house  or  other  building  within  the  city  and 
county  of  Philadelphia,"  and  the  supplements  thereto,  be  and 
they  are  hereby  extended  to  plumbers,  for  all  work  by  them 
done,  or  materials  by  them  found  and  provided,  for  or  in  the 
erecting  and  constructing  of  all  and  every  dwelling-house  or 
other  building,  and  the  hydrants  and  pipes  appurtenant 
thereto,  hereafter  constructed  and  erected  within  the  city  and 
county  of  Philadelphia. 

Act  of  30th  March,  1831,  Pamph.  L.  239. 

An  Act  extending  aii  Act  entitled  ''^  An  Act  securing  to  me- 
chanics and  others  payment  for  their  lahour  and  materials 
in  erecting  any  house  or  other  building  within  the  city  a7id 
county  of  Philadelphia,"  to  the  counties  of  Bedford,  Cam- 
bria, Tioga,  and  Armstrong. 

Sect.  1.  From  and  after  the  passage  of  this  Act  the  Act 
entitled  "An  Act  securing  to  mechanics  and  others  payment 
for  their  labour  and  materials  in  erecting  any  house  or  other 


STATUTES.  327 

building  -within  the  city  and  county  of  Philadelphia,"  passed 
the  seventeenth  day  of  March,  one  thousand  eight  hundred 
and  six,  with  the  supplement  thereto,  passed  the  t^Yenty-eighth 
day  of  March,  one  thousand  eight  hundred  and  eight,  shall  be, 
and  the  same  are  hereby  declared  to  be,  in  full  force  and 
operation  in  the  counties  of  Bedford,  Cambria,  Tioga,  and 
Armstrong ;  and  mechanics  and  others  in  the  said  counties  of 
Bedford,  Cambria,  Tioga,  and  Armstrong  shall  have  like  re- 
medy, under  the  said  Acts,  as  though  they  were  herein  enacted 
at  full  length. 

Act  of  30th  March,  1831,  Pamph.  L.  242. 
An  Act  relative  to  the  liens  of  mechanics  and  others. 

Sect.  1.  From  and  after  the  passage  of  this  Act  all  claims 
filed  or  entered  in  pursuance  of  the  Act  to  which  this  is  a 
further  supplement,  within  six  months  after  performing  the 
work  or  furnishing  the  materials,  shall  continue  to  bind  the 
buildings  or  dwelling-houses  against  which  the  same  are  en- 
tered, for  the  term  of  five  years  from  the  day  of  filing  the 
same;  and  no  claim,  so  as  aforesaid  filed,  shall  bind  any 
building  or  dwelling-house  for  a  longer  period  than  five  years 
from  the  day  of  filing  the  same,  unless,  within  that  time,  the 
person  who  has  filed  the  same,  his  executors,  administrators 
or  assigns,  shall  issue  a  scire  facias  thereon. 

Sect.  2.  In  all  cases  where  any  claim  or  claims  has  or 
have  been  filed,  or  shall  hereafter  be  filed,  the  legal  or  equi- 
table owner  or  owners  of  the  buildings  or  dwelling-houses 
bound  thereby,  or  any  person  interested,  may  apply  to  the 
court,  on  the  proper  docket  of  Avhich  the  same  is  or  are  filed, 
by  petition,  setting  forth  the  facts;  which  said  court  shall 
order  an  issue  to  be  formed  and  tried,  to  ascertain  if  any,  and 
what  sum  is  due  upon  such  claim  or  claims,  and  shall  have 
power  to  make  orders  in  relation  to  such  issue,  and  the  mode 
of  trying  the  same,  and  the  costs  thereof,  as  fully  as  any  court 
of  equity  might  or  could  do  in  relation  to  any  issue  ordered 
by  such  courts  of  equity. 

Sect.  3.  In  all  cases  where  the  amount  of  any  claim  has 
been  paid  and  satisfied,  and  no  satisfaction  entered  on  the 
record   thereof,  the   legal  or  equitable   owner  or  owners  of 


328  APPENDIX. 

the  building  or  dwelling-house  or  dwelling-houses,  bound  by 
the  same,  may,  in  order  to  have  satisfaction  entered  on  the 
record,  proceed  against  the  person  filing  such  claim,  his  ex- 
ecutors, administrators  and  assigns,  in  the  same  manner,  and 
shall  have  the  rights  and  remedies  provided  for  defendants 
and  purchasers  of  real  property,  by  the  fourteenth  section  of 
the  Act  of  assembly  of  this  commonwealth,  entitled  "An  Act 
to  establish  the  judicial  courts  of  this  commonwealth,  in  con- 
formity to  the  alterations  and  amendments  in  the  constitution," 
passed  the  thirteenth  day  of  April,  one  thousand  seven  hun- 
dred and  ninety-one. 

And  ivhcreas,  it  sometimes  happens  that  several  houses 
and  other  buildings,  adjoining  each  other,  are  erected  by  the 
same  owner,  so  that  it  is  impossible  for  the  person  who  has 
found  and  provided  materials  for  the  same  to  specify  in  his 
claim  filed  the  particular  house  or  other  building  for  which 
the  several  items  of  his  demand  were  so  found  and  provided : 
And  whereas,  doubts  have  arisen  as  to  the  true  construction 
in  such  cases  of  the  laws  of  this  Commonwealth:  Therefore, 

Sect.  4.  It  shall  and  may  be  lawful,  in  every  such  case, 
for  the  person  so  finding  and  providing  materials,  as  afore- 
said, for  two  or  more  adjoining  houses,  and  other  buildings 
built  by  the  same  person,  owner  of  the  same,  and  debtor  for 
the  said  materials,  to  file,  with  his  claim  thereof,  an  appor- 
tionment of  the  amount  of  the  same  among  the  said  houses 
and  other  buildings:  and  each  of  the  said  houses  and  other 
buildings  shall  be  subject  to  the  payment  of  its  said  appor- 
tioned share  of  the  debt  contracted,  in  the  same  manner  as  is 
provided  by  law  in  other  cases. 

Act  of  7tli  May,  1832,  Pampli.  L.  539. 
An  Act  extending  "^?i  Act  securing  to  mechanics  and  others 
payment  for  their  labour  and  materials  in  erecting  any 
house  or  other  building  within  the  city  and  county  of  Phila- 
delphia,'' to  the  counties  of  Chester,  Butler  and  Perry. 
Sect.  1.  From  and  after  the  passage  of  this  Act  the  Act  en- 
titled "An  Act  securing  to  mechanics  and  others  payment  for 
their  labour  and  materials  in  erecting  any  house  or  other  build- 
ing within  the  city  and  county  of  Philadelphia,"  passed  the  se- 


STATUTES.  329 

renteentli  day  of  March,  one  thousand  eight  hundred  and  six, 
■with  the  supplements  thereto,  passed  the  t^YentJ- eighth  day 
of  March,  one  thousand  eight  hundred  and  eight,  and  the  thir- 
tieth of  March,  one  thousand  eight  hundred  and  thirty-one, 
shall  be,  and  the  same  are  hereby  declared  to  be,  in  full  force 
and  operation  in  the  counties  of  Chester  (Butler)  and  Perry; 
and  mechanics  and  others  in  the  said  counties  of  Chester,  But- 
ler and  Perry  shall  have  like  remedy,  under  the  said  Acts  as 
tliough  they  were  herein  enacted  at  full  length. 

Act  of  nth  April,  1835,  Pamph.  L.  190. 

An  Act  extending  the  mechanics'  lien  law  to  the  counties  of 
Warren  and  Juniata,  and  for  other  purposes. 

Sect.  1.  The  provisions  of  the  Act  passed  on  the  seventeenth 
of  March,  one  thousand  eight  hundred  and  six,  entitled  "An 
Act  securing  to  mechanics  and  others  payment  for  their  labour 
and  materials  in  erecting  any  house  or  other  building  within 
the  city  and  county  of  Philadelphia,"  and  of  the  Supplement 
thereto,  passed  on  the  twenty-eighth  of  March,  one  thousand 
eight  hundred  and  eight,  shall  be,  and  the  same  are  hereby 
extended  to  and  declared  to  be,  in  full  force  and  operation  in 
the  counties  of  Vf  arren  and  Juniata ;  and  mechanics  and  others 
in  the  said  counties  of  Warren  and  Juniata  shall  have  like  re- 
medy, under  the  said  Acts,  as  though  they  were  herein  enacted 
at  full  length,  and  applied  to  the  said  county  of  Warren. 

Act  of  13th  April,  1835,  Pamph.  L.  213. 

An  Act  to  extend  the  laws  relating  to  the  mechanics'  liens  to 
the  counties  of  Washington,  Huntingdon^  fiercer,  Beaver^ 
and  Alleghany. 

Sect.  1.  From  and  after  the  passage  of  this  Act,  the  Act 
entitled  "An  Act  securing  to  mechanics  and  others  payment 
for  their  labour  and  materials  in  erecting  any  house  or  other 
building  within  the  city  and  county  of  Philadelphia,"  passed 
the  seventeenth  of  March,  one  thousand  ci<xht  hundred  and 
six,  and  the  supplements  thereto,  passed  the  twenty-eighth  of 
March,  one  thousand  eight  hundred  and  eight,  and  the  thirtieth 
of  March,  one  thousand  ciglit  hundred  and  thirty-one,  shall  bo 


330  APPENDIX. 

and  the  same  arc  hereby  extended  to  and  in  full  force  and 
operation  in  the  counties  of  Washington,  Huntingdon,  Mercer, 
Beaver,  and  Alleghany ;  and  mechanics  and  others  shall  have 
like  remedies  in  the  said  counties,  imder  the  said  Acts,  as  though 
the  provisions  thereof  had  been  herein  enacted  at  full  length. 

Act  of  1st  April,  1S3G,  Pamph.  L.  400. 

An  Act  to  authorize  the  opening  and  extension  of  Robinson 
and  Leacock  streets,  and  Rebecca  street,  in  the  borough  of 
Alleghany,  and  the  opening  of  a  sixty  feet  street  betiveen 
out  lots  numbered  thirty-nine  and  forty,  in  said  borough, 
and  for  other  purposes. 

Sect.  G.  The  Act,  entitled  "An  Act  securing  to  mechanics 
and  others  payment  for  their  labour  and  materials  in  erecting 
any  house  or  building  -within  the  city  and  county  of  Philadel- 
phia," passed  the  seventeenth  of  March,  one  thousand  eight 
hundred  and  six,  and  the  supplements  thereto,  passed  the 
twenty-eighth  of  March,  one  thousand  eight  hundred  and 
eight,  and  the  thirtieth  of  March,  one  thousand  eight  hundred 
and  thirty-one,  be  and  they  are  hereby  extended  to  Susque- 
hannah  county. 

Act  of  IGth  June,  183G,  Pampli.  L.  G95.' 

An  Act  relating  to  the  lien  of  mechanics  and  others  upon 
buildings. 

Sect.  1.  Every  building  erected  within  the  several  coun- 
ties of  this  commonwealth  to  which  the  Act  entitled  "An  Act 

^  Itemarks  upon  the  bill  entitled,  ''An  Act  relating  to  the  Lien  of  Mechanics 
and  others  vpo7i  Buildings.  Beporfed  Ath  Jamtary,  1836. 
The  Acts  of  Assembly  giving  a  specific  lien  on  buildings  for  work  done 
and  materials  furnished  for  them,  established  a  system  for  which  no  pre- 
cedent existed  in  our  own  or  the  English  Law.  The  only  previous  in- 
stance of  a  character  at  all  similar,  is  to  be  found  in  the  act  of  1784,  re- 
lating to  persons  employed  in  building  and  repairing  vessels,  the  subject 
matter  of  which,  however,  differs,  in  some  obvious  points,  from  that  of  the 
Act  of  180(3,  although  the  phraseology  of  the  former  has  been  followed  in 
some  passages.  It  is  not  surprising,  therefore,  that  defects  have  been 
discovered  in  the  Acts  in  question,  nor  that  great  difficulties  have  been 


STATUTES.  331 

securing  to  mechanics  and  others  payment  for  their  hibour 
and  materials  in  erecting  any  house  or  other  building  within 
the  city  and  county  of  Philadelphia,"  passed  the  seventeenth 
of  March,  one  thousand  eight  hundred  and  six,  and  the  several 
supplements  thereto,  now  extends,  shall  be  subject  to  a  lien 
for  the  payment  of  all  debts  contracted  for  work  done  or  ma- 
terials furnished  for  or  about  the  erection  or  construction  of 
the  same. 

Sect.  2.  The  lien  of  such  debt  shall  extend  to  the  ground 
covered  by  such  building,  and  to  so  much  other  ground  im- 
mediately adjacent  thereto,  and  belonging  in  like  manner  to 

experienced  by  the  courts  and  the  bar,  in  giving  effect  to  the  design  of  the 
legislature. 

The  policy  of  the  system  has  been,  often  and  seriously,  questioned,  and 
doubts  have  been,  frequently,  expressed,  whether,  upon  the  whole,  it  works 
well  even  for  those  for  whose  benefit  it  was  enacted,  since  it  tends  to  clog 
the  transfer  of  real  estate,  by  the  risk  in  which  it  involves  purchasers  and 
mortgagees.  The  example  set  by  this  state,  however,  has  been  follov/ed 
in  some  others,  and  recently  by  Congress,  in  relation  to  the  District  of 
Columbia,  by  the  adoption,  in  the  same  words,  of  the  Act  of  1806  and 
1808.  Public  opinion  also  seems  favourable  to  a  continuance  of  the  sys- 
tem, since  the  lien  which,  by  the  Act  of  1806,  was  confined  to  the  city  and 
county  of  Philadelphia,  has,  by  successive  Acts,  been  extended  to  thirty- 
nine  counties,  besides  several  boroughs  or  towns. 

It  is  deemed  best,  therefore,  to  retain  the  principal  features  of  the  ex- 
isting law,  with  such  modifications,  however,  as  may  tend  to  remove  the 
diflBculties  alluded  to,  and  to  render  it  more  consonant  with  other  parts  of 
our  code. 

Sect.  I.  The  first  section  makes  the  provision  general.  It  has  already 
been  extended  over  the  principal  part  of  the  state,  rural  as  well  as  urban, 
and  we  see  no  reason  why  it  should  not  be  general.  If  it  should  not  be 
acceptable,  however,  in  any  country  or  place,  a  section  may  be  added  ex- 
cepting such  place.  "We  have  in  this  section  omitted  the  enumeration  of 
particular  mechanics  and  material  men,  since  the  general  words  of  the  Act 
of  180G  seemed  to  render  it  necessary. 

Sect.  II.  The  second  section  is  new  in  terms,  and  has  been  introduced, 
for  the  purpose  of  removing  a  difficulty  which  arose  very  early  after  the 
passage  of  the  Act  of  1800.  That  Act  says,  "every  dwelling-house  or  otlicr 
building  shall  be  subject,"  &c.  These  words  give  no  lien  to  tlie  mechanics, 
&c.,  upon  the  ground  or  land  occupied  by  a  building,  or  ailjacent  to  it. 
The  rule  of  the  common  law  is,  that  tlie  ownersliip  of  the  soil  carries  with 
it  every  thing  erected  upon  it,  except  under  special  circumstances;  aiid  it 
has  never  Ijeen  supposed  that  the  reverse  of  this,  viz.  that  a  right  of  lien 


332  APPENDIX. 

the  owner  of  such  building,  as  may  be  necessary  for  the  or- 
dinary and  useful  purposes  of  such  building,  the  quantity 
and  boundaries  whereof  shall  be  determined  as  follows : 


upon  a  house  affected  the  ownership  of  the  soil,  could  be  sustained,  upon 
any  sound  principle.  It  is  plain,  however,  that  a  lien  upon  a  building 
merely,  without  any  ownership  in,  or  control  over  the  soil  which  it  covered, 
would  be  of  little  avail  to  the  mechanic;  and  even  if  the  ground  under  the 
building  were  supposed  to  pass  with  it,  the  value  of  the  building  would  be 
trifling,  in  most  situations,  if  deprived  of  the  use  of  the  ground  immediately 
adjacent  to  it.  Other  creditors,  however,  holding  mortgages  or  judgments, 
disputed  the  right  of  lien  creditors,  under  this  law,  to  more  thau  the  mere 
building,  or  at  all  events  to  more  than  the  ground  actually  occupied  by  it. 
The  construction  given  by  the  courts  of  Philadelphia  to  this  provision,  was 
perhaps  not  free  from  objection,  but  it  certainly  tended  to  give  efficacy  to 
these  liens,  which  it  was  the  design  of  the  legislature  to  encourage.  They 
held  that  the  lien  attached,  not  only  to  the  building  and  the  ground  occu- 
pied by  it,  but  to  so  much  of  the  adjacent  ground  as  was  necessary  and 
proper  for  the  ordinary  purposes  of  the  building.  The  practice  of  many 
years  has  been  in  accordance  with  this  view  of  the  law.  A  recently  re- 
ported decision,  however,  of  the  Supreme  Court  at  Pittsburgh  (M' Donald 
V.  Lindall,  reported  in  3  Rawle,  492,)  has  tended  to  throw  some  doubt  upon 
the  correctness  of  the  present  construction  of  the  Act;  and  at  all  events,  the 
uncertainty  in  which,  by  the  practice,  the  extent  of  the  lien  is  left,  seem  to 
require  some  definite  legislative  provision.  It  is  believed,  that  it  was  the  in- 
tention of  the  legislature  to  give  the  mechanics  and  material  men  the  benefit 
of  a  lien  upon  a  building,  with  all  the  appurtenances  that  confer  a  value  upon 
it,  in  the  absence  of  any  express  stipulation  on  the  subject.  But  how  are 
these  appurtenances  to  be  ascertained?  Certainly  not  by  any  general  rule 
to  be  laid  down  in  the  first  instance.  A  dwelling-house  in  a  city  or  borough, 
for  example,  has  usually  attached  to  it  a  lot  of  ground  of  sufficient  depth 
for  the  usual  outbuildings,  and,  at  all  events,  for  the  benefit  of  light  and  air. 
A  barn  in  the  country,  in  the  middle  of  a  field,  would  be  of  little  value,  if 
there  were  no  right  to  approach  it.  Almost  every  species  of  building  has 
some  appurtenances,  which  vary  with  the  different  kinds  of  building.  If, 
then,  it  can  be  conceded,  that  this  lien  extends  to  the  appurtenances  of  a 
building,  the  difficulty  will  still  remain  of  deciding  upon  the  extent  thereof. 
It  would  be,  obviously,  vsrong  to  leave  it  to  the  lien  creditor  to  define  the  ex- 
tent of  his  lien,  for  himself,  on  filing  his  claim.  Nor  is  there,  at  present, 
any  authority  in  the  court  to  interfere,  before  the  proceeds  of  the  sheriff's 
sale  are  brought  in.  They  then  endeavour  to  do  justice  between  the  dif- 
ferent species  of  incumbrances,  by  apportioning  the  fund  among  them,  ac- 
cording to  what  they  suppose  to  be  the  extent  of  their  respective  rights. 
But  if,  in  law,  the  lien  of  the  mechanic  is  limited,  as  it  must  be  somewhere, 
or  to  some  extent  of  ground,  the  sheriff,  upon  an  execution  on  his  claim, 


STATUTES.  333 

Sect.  3.  It  shall  be  the  duty  of  the  prothonotary  of  the 
Court  of  Common  Pleas  of  every  county  to  which  the  provi- 
sions of  this  Act  extend,  and  the  prothonotai-y  of  the  District 
Court  of  the  city  and  county  of  Philadelphia,  respectively,  and 
of  the  city  and  county  of  Lancaster,  the  District  Court  of  iVl- 
leghany  county,  to  procure  and  keep  a  book  or  docket,  which 
shall  be  called  the  "Mechanics'  Lien  Docket,"  in  which  he 
shall  cause  to  be  entered  and  recorded  all  descriptions  or  de- 
signations of  lots  or  pieces  of  ground,  as  hereinafter  men- 
tioned, and  all  claims  that  may  be  filed  by  virtue  of  tliis  Act, 
together  with  the  day  of  filing  the  same ;  and  he  shall  cause 
the  names,  as  well  of  the  owner  of  the  lot  or  piece  of  ground 

can  sell  no  more  than  to  that  extent,  and  the  purchaser  will  certainly  be  in 
doubt  about  the  extent  of  his  purchase. 

In  the  bill  now  submitted,  an  effort  has  been  made  to  obviate  the  diffi- 
culties alluded  to,  which  at  least,  as  respects  some  of  those  mentioned, 
will,  we  think,  be  found  successful.  It  is  proposed,  in  the  third  section, 
to  provide  that  the  prothonotary  shall  keep  a  docket,  in  which  all  the  pro- 
ceedings relating  to  mechanics'  liens  shall  be  contained.  The  object  is, 
by  concentrating  all  that  relates  to  particular  buildings,  to  facilitate  in- 
quiry and  notice.  In  the  fourth  section,  we  propose  that  the  owner  of  a 
piece  of  ground,  who  may  be  about  to  contract  for  the  erection  of  a  build- 
ing thereon,  may,  before  the  commencement  thereof,  designate  the  boun- 
daries of  the  lot,  so  as  to  fix  the  amount  which  shall  be  considered  as  ap- 
purtenant to  the  building.  To  this,  we  presume,  there  can  be  [no]  objec- 
tion, as  it  will  take  place  before  any  right  accrues  to  the  mechanic,  and 
is  to  be  entered  in  the  book  we  have  mentioned.  The  fifth,  sixth  and 
seventh  sections,  provide  for  the  case  of  the  owner  having  failed  to  make 
such  designation,  and  authorize  the  court,  on  the  application  of  any  per- 
son interested,  to  appoint  commissioners  to  examine  and  report  on  the 
proper  extent  of  these  appurtenances,  and  provide  for  the  due  execution 
of  their  duties  by  the  commissioners.  In  the  eighth  section,  power  is 
given  to  the  court  to  stay  execution  upon  any  judgment  or  other  proceed- 
ing, until  the  extent  of  the  boundaries  shall  be  designated  by  commission- 
ers as  aforesaid,  and  the  ninth  section  recognises  the  power  at  present  ex. 
ercised  by  the  courts,  of  apportioning  the  proceeds  of  a  sheriff's  sale  of 
real  estate  according  to  the  extent  of  the  several  liens. 

These  sections  have  been  framed  with  a  view  to  the  just  righlH  of  the 
various  parties  interested,  as  well  judgment  creditors  and  mortgagees  as 
the  builders  and  owners  of  the  ground,  and  will  be  found,  we  tliink,  to 
provide  at  least  some  improvement  on  the  present  law,  Ijy  relieving  tlio 
public  and  tlie  i)arties  from  the  frequent  and  protracted  litigation  to  which 
the  prevailing  uncertainty  respecting  the  extent  of  the  lien  gives  rise. 


334  APPENDIX. 

as  of  the  contractor,  architect  or  builder,  if  such  be  named, 
and  of  the  person  chiiraing  any  lien  under  this  Act,  to  be  alpha- 
betically indexed  therein. 

Sect.  4.  It  shall  be  lawful  for  the  owner  of  any  lot  or 
piece  of  ground,  who  may  be  desirous  of  erecting,  or  of  con- 
tracting with  any  other  person  for  the  erection  of  any  build- 
ing as  aforesaid,  to  declare  or  define  in  writing  the  bounda- 
ries of  the  lot  or  curtilage  appurtenant  to  such  building, 
previously  to  the  commencement  thereof,  and  cause  the  same 
to  be  entered  in  a  book  aforesaid ;  and  such  designation  of 
boundaries,  so  made  and  entered  upon  record,  shall  be  obli- 
gatory upon  all  persons  concerned. 

Sect.  5.  In  default  of  such  designation  of  boundaries 
previously  to  the  commencement  of  any  building,  it  shall  be 
lawful  for  the  owner  of  such  lot  or  piece  of  ground,  or  for 
any  person  having  a  lien  on  the  same,  by  mortgage,  judg- 
ment or  otherwise,  or  entitled  to  a  lien  by  virtue  of  this  xVct, 
to  apply  by  petition,  in  writing,  to  the  proper  court,  to  ap- 
point competent  and  skilful  persons  as  commissioners  to 
designate  the  boundaries  aforesaid. 

Sect.  6.  It  shall  be  the  duty  of  the  court  to  whom  appli- 
cation shall  be  made  as  aforesaid,  after  reasonable  notice 
given  to  all  parties  interested,  to  appoint  such  competent 
persons  commissioners  as  aforesaid,  as  all  the  parties  inte- 
rested shall  nominate;  but  if  the  parties  cannot  agree  upon  a 
nomination,  it  shall  be  lawful  for  the  court  to  appoint  such 
competent  persons,  for  that  purpose,  as  they  shall  think  proper. 

Sect.  7.  It  shall  be  the  duty  of  the  commissioners  so 
appointed  to  examine  the  building,  or  place  at  Avhich  such 
building  is  being  erected,  and  to  make  a  report  to  the  court, 
in  pursuance  of  the  order  to  them  directed;  and,  in  such 
report,  they  shall  sufficiently  designate  and  describe,  by  metes 
and  bounds,  with  their  courses  and  distances,  and  by  a  draft, 
if  necessary,  the  limits  and  extent  of  ground  necessary  for 
the  convenient  use  of  such  building,  for  the  purposes  for 
which  it  is  designed;  and  such  report  shall  be  entered  at 
length  upon  the  record  book  aforesaid,  and,  if  approved  by  the 
court,  shall  be  conclusive  upon  all  persons  concerned. 

Sect.  8.  If  execution  shall  be  awarded  for  the  levy  and 


STATUTES.  33o 

sale  of  any  lot  or  piece  of  ground,  upon  which  a  building 
shall  be  erected  as  aforesaid,  before  the  boundaries  of  the  lot 
or  curtilage  which  ought  to  be  appurtenant  thereto  shall  be 
designated,  it  shall  be  lawful  for  the  court,  upon  application, 
to  stay  such  execution  until  such  designation  shall  be  made ; 
and,  thereupon,  order  the  sale  to  proceed,  in  such  manner,  and 
for  such  part  or  parts,  and  in  such  parcels,  as  shall  be  most 
convenient  for  the  administration  of  equity  among  all  persons 
interested. 

Sect.  9.  If  the  building  against  which  any  claim  shall  be 
filed  as  aforesaid,  or  any  part  of  the  ground  adjacent  thereto, 
shall  be  sold  by  virtue  of  an  execution,  upon  any  mortgage 
or  judgment,  before  the  extent  of  the  lien  of  the  claimant 
shall  be  ascertained  as  aforesaid,  the  court  out  of  which  such 
execution  shall  have  issued  shall  have  power  to  determine  the 
rights  of  the  respective  parties,  and  the  apportionment  or  ap- 
propriation of  all  liens  as  aforesaid;  and  for  that  purpose, 
may  appoint  an  auditor  to  inquire  into  and  report  the  facts, 
and  may  decree  distribution  of  the  proceeds  accordingly,  or, 
upon  the  application  of  any  of  the  parties,  may  direct  an  issue 
for  the  determination  of  disputed  facts. 

Sect.  10.  The  lien  for  work  and  materials  as  aforesaid 
shall  be  preferred  to  every  other  lien  or  incumbrance  which 
attached  upon  such  building  and  ground,  or  either  of  them, 
subsequently  to  the  commencement  of  such  building.^ 

Sect.  11.  Every  person  entitled  to  such  lien  shall  file  a 
claim  or  statement  of  his  demand  in  the  office  of  the  protho- 
notary  of  the  Court  of  Common  Pleas  of  the  county  in  which 
the  building  may  be  situate. 

Sect.  12.  Every  claim  as  aforesaid  must  set  forth  :^ 
First,  The  names  of  the  party  claimant,  and  of  the  owner 
or  reputed  owner  of  the  building,  and  also  of  the  contractor, 

'  Sfxt.  X.  Is  taken  from  the  first  section  of  the  act  of  ISOO. 

*  Sect.  XIII.*  In  the  tliirteenth  section,  it  is  proposed  to  decliiro  certain 
points  to  be  essential  to  the  validity  of  a  claim.  The  oljject  of  filing  a 
claim,  is  to  give  notice  to  third  persons  of  the  names  of  the  parties,  the 

'  "  Tlie  cli'vnnth  section  of  the  report  of  the  Commisaioncrs  was  oniilttd  liy  tiic 
legislature.  The  remarks  to  section  thirteen  refer  to  s.-ction  twelve  of  the  !a  v,  and 
60  on. 


336  APPENDIX. 

architect  or  builder,  M'lierc  the  contract  of  the  claimant  was 
made  ■with  such  contractor,  architect  or  builder. 

Second,  The  amount  or  sum  claimed  to  be  due,  and  the 
nature  or  kind  of  the  work  done,  or  the  kind  and  amount  of 
materials  furnished,  and  the  time  when  the  materials  were 
furnished  or  the  work  was  done,  as  the  case  may  be. 

Third,  The  locality  of  the  building,  and  the  size  and  number 
of  the  stories  of  the  same,  or  such  other  matters  of  description 
as  shall  be  sufficient  to  identify  the  same. 

Sect.  13.^  In  every  case  in  Avhich  one  claim  for  materials 
shall  be  filed  by  the  person  preferring  the  same  against  two 
or  more  buildings  owned  by  the  same  person,  the  person  filing 
such  joint  claim  shall,  at  the  same  time,  designate  the  amount 
which  he  claims  to  be  due  to  him  on  each  of  such  buildings, 
otherwise  such  claim  shall  be  postponed  to  other  lien  creditors ; 
and  the  lien  of  such  claimant  shall  not  extend  beyond  the 
amount  so  designated,  as  against  other  creditors,  having  liens 
by  judgment,  mortgage  or  otherwise. 

Sect.  14.^  Every  such  debt  shall  be  a  lien,  as  aforesaid, 
until  the  expiration  of  six  months  after  the  work  shall  have 

amount  alleged  to  be  due,  and  the  property  upon  which  the  lien  is  claimed. 
Unless  these  are  distinctly  stated,  it  is  obvious  that  the  notice  is  of  little 
value.  Many  claims,  however,  have  been  filed,  deficient  in  these  essentials, 
probably  from  want  of  sufficient  precision  in  the  law.  It  is  believed  that 
the  directions  of  this  section  can  be  followed  by  the  lien  creditors  without 
difficulty,  and  that  it  will  tend  to  facilitate  their  entering  claims  without 
professional  assistance. 

^  Sect.  XIV.  Alters  somewhat  the  provision  of  section  four,  of  the  act  of 
1831,  the  preamble  to  which  explains  the  necessity  of  the  provision.  The 
last  part  of  that  section,  which  says  ihat  the  several  buildings  shall  be 
liable  to  the  apportionment  made  by  the  claimant,  has  been  omitted  be- 
cause it  seems  objectionable  that  the  party  should  have  a  right  conclusively 
to  fix  the  liability  of  property  which  may  be  in  the  hands  of  a  third  person ; 
though  it  is  proper  that,  having  made  an  apportionment,  he  should  be 
bound  by  it  as  against  other  creditors  or  purchasers.  It  is  believed  to  be 
best  to  leave  the  correctness  of  the  apportionment  to  be  determined  by  the 
court,  or  a  jury,  if  the  parties  interested  should  dispute  it. 

^  Skct.  XV.  In  this  section  the  provision  of  the  first  section  of  the  act 
of  ISOG,  is  materially  altered.  The  original  has  given  rise  to  great  doubt 
and  litigation ;  besides  which,  it  is  believed  to  operate  injuriously  upon 
the  owners  of  property  and  incumbrancers,  by  the  uncertainty  in  which 
it  keeps  them  for  an  unnecessarily  long  period.     "The  commencement  of 


STATUTES.  337 

been  finished  or  materials  furnished,  although  no  claim  shall 
have  been  filed  therefor;  but  such  lien  shall  not  continue 
longer  than  the  said  period  of  six  months,  unless  a  claim  be 
filed,  as  aforesaid,  at,  or  before  the  expiration  of  the  same 
period. 

Sect.  15.  The  proceedings  to  recover  the  amount  of  any 
claim,  as  aforesaid,  shall  be  hj  a  writ  of  scire  facias,  in  the 
following  form:  viz. 

County,  ss. 

The  commonwealth  of  Pennsylvania  to  the  sheriff  of  said 
county,  greeting: 

Whereas  hath  filed  a  claim  in  our 

(court)  for  the  county  of  ,  against 

for  the  sum  of  ,  for  (work  done  or  materials  fur- 

nished, as  the  case  may  be)  to  (or  for)  a  certain  building: 
to  wit  (describing  it  as  in  the  claim :)  Atid  whereas,  it  is 
alleged  that  the  said  sum  still  remains  due  and  unpaid  to  the 
said  ;  now  we  command  you  that  you  make 

known  to  the  said  ,  and  to  all  such  persons  as 

may  hold  or  occupy  the  said  building,  that  they  be  and  ap- 
pear before  the  judges  of  our  said  court  at  a  court  of 

,  to  be  held  at  ,  on  the  of 

next,  to  show,  if  any  thing  they  know  or  have  to  say,  why 
the  said  sum  of  should  not  be  levied  of  the  said 

building,  to  the  use  of  the  said  ,  according  to 

the  form  and  effect  of  the  Act  of  Assembly  in  such  case  made 
and  provided,  if  to  them  it  shall  seem  expedient,  and  have 
you  then  and  there  this  writ. 
Witness. 

Sect.  16.  Provided,  That  no  such  scire  facias  shall  in  any 

the  building,"  from  which  the  two  years  begin  to  run,  does  not  afford  that 
general  rule  which  is  desirable;  some  few  buildings  requiring  more  than 
two  years  to  finish,  while  others  are  completed  in  much  less  linio.  Be- 
sides, it  is  in  most  instances  very  difficult  for  third  persons  to  ascertain 
when  the  particular  work  was  performed,  or  materials  furnished,  from 
which  the  six  months  run:  consequently,  the  risk  of  purchasers  of  real 
estate  is  greaily  augmented.  The  limitation  in  the  section  now  siiggosted, 
seems  more  simjtlo  and  less  likely  to  embarrass.  As  long  as  the  building 
is  in  progress,  sufficient  notice  is  giv(;ii,  and  the  period  of  six  months  after 
it  is  finished,  seems  to  give  ample  opportunity  for  the  filing  of  the  lien. 

22 


338  APPENDIX. 

case  1)0  issued  ■\vitliin  fifteen  days  previous  to  tlie  return  day 
of  the  next  term. 

Sect.  IT.'  The  ■writ  of  scire  facias  aforesaid  shall  be  served 
in  the  same  manner  as  a  summons,  upon  the  defendant  therein 
named,  if  he  can  be  found  within  the  county,  and  a  copy 
thereof  shall  also  be  left  with  some  person  residing  in  the 
building,  if  occupied  as  a  place  of  residence;  but,  if  not  so 
occupied,  it  shall  be  the  duty  of  the  sheriff  to  affix  a  copy  of 
such  Avrit  upon  tlie  door  or  other  front  part  of  such  building. 

Sect.  18.  It  shall,  also,  be  the  duty  of  the  sheriff  to  -whom 
any  such  -vvrit  of  scire  facias  may  be  directed,  to  give  notice 
thereof  to  all  other  claimants  and  persons  interested,  by  ad- 
vertisements in  two  daily  newspapers  published  in  his  county, 
as  the  case  may  be,  at  least  ten  days  before  the  return  day  of 
the  writ,  in  each  county  where  such  papers  are  published;  but, 
when  daily  papers  are  not  so  published,  then  in  two  weekly 
newspapers,  if  so  many  are  published  therein,  or  if  but  one 
weekly  newspaper  is  published  in  such  county,  in  such  news- 
paper, or  if  no  paper  is  published  in  such  county,  in  a  paper 


^  Sect.  XVII.  to  XIX.  These  sections  have  been  introduced  for  the  pur- 
pose of  giving  some  additional  notice  to  third  persons  interested,  of  the 
proceedings  upon  a  claim.  The  provisions  of  the  existing  law  seem  to  be 
sufScient,  as  respects  the  owner  of  the  property  with  whom,  or  on  whose 
account,  the  contract  was  made;  but  they  are  strikingly  deficient  with  re- 
spect to  third  persons,  such  as  purchasers,  mortgagees,  judgment  creditors, 
and  other  medianics  and  material  men,  since  they  provide  no  kind  of  notice 
to  them,  while  they  may  be  greatly  prejudiced  by  the  proceeding.  Fre- 
quently the  owner  of  property  is  insolvent,  and  indisposed  to  contest  the 
amount  of  a  claim.  Sometimes  he  may  collude  with  the  claimant,  and  a 
judgment  may  thus  be  obtained  on  a  scire  facias  to  a  much  greater  amount 
than  the  justice  of  the  case  would  warrant ;  whereas,  if  the  lien  creditors 
had  had  notice,  they  might  have  come  in  and  disputed  the  amount. 

But  how  is  notice  to  be  given  to  them  ?  Ought  they  to  be  made  parties 
to  the  suit,  as  is  required  in  chancery  in  England,  or  served  with  a  rule  to 
appear  and  take  defence  if  they  think  proper?  The  objection  to  this  is, 
that  it  imposes  on  the  claimant  great  expense  and  inconvenience  in  making 
search  for  all  these  persons,  whom  it  will  be  necessary  to  trace  through  the 
various  ofiSces,  especially  in  the  case  of  mortgages,  which  must  be  searched 
for  against  all  persons  who  have  previously  held  the  property ;  and  even 
after  all  pains  taken,  some  persons  interested  might  remain  undiscovered. 
The  exp3nse,  too,  of  serving  writs  or  notices  upon  those  who  were  ascer- 


STATUTES.  339 

published  nearest  thereto,  for  four  successive  -weeks  before 
the  return  day  thereof.^ 

Sect.  19.  Upon  the  return  of  such  writ,  it  shall  be  laAvfuI 
for  any  other  person,  having  filed  a  claim  as  aforesaid,  to 
cause  to  be  entered  on  the  record  of  the  same  suit,  a  sugges- 
tion, setting  forth  the  amount  and  nature  of  his  demand,  and 
thereupon  he  may  have  a  rule  upon  the  defendant  to  appear, 
and  plead  thereto,  as  in  other  actions. 

Sect.  20.  If  the  defendant  shall  appearand  plead  to  such 
suggestion,  and  issue  either  in  fact  or  law  be  joined  upon  any 
plea,  such  particular  issue  shall  be  tried  and  determined  as  in 
other  cases:  if  the  defendant  shall  not  plead  to  such  sugges- 
tion, after  due  notice,  judgment  shall  be  entered  for  the  clai- 
mant filing  the  same,  and  the  amount  of  the  claim  shall  be 
ascertained  as  in  other  cases. 

Sect.  21.  The  execution  for  every  such  judgment  shall  be 
by  a  writ  of  levari  facias,  in  the  following  form: 
County,  ss. 

The  commonwealth  of  Pennsylvania  to  the  sherifi"  of  said 
county,  greeting : 

We  command  you,  that  without  any  other  writ  from  us,  of 

the  following  described  building  and  lot  of  ground  of  A.  B., 

to  wit  (describing  the  same  according  to  the  record,)  in  your 

bailiwick,  you  cause  to  be  levied,  as  well  a  certain  debt  of 

,  which  C.  D.,  lately  in  our  Court  of  Common  Pleas 


tained  to  be  interested,  would  be  very  great.  The  least  expensive,  and  in 
some  respects,  the  most  certain  mode,  seems  to  be  that  of  public  advertise- 
ment, which  is  adopted  in  many  other  cases.  The  provision  which  we 
have  added  in  the  eighteenth  section,  that  a  copy  of  the  scire  facias  shall 
in  all  cases  be  left  at  the  building,  or  affixed  thereto,  will  come  in  aid  of 
the  other  means  of  notice.  To  give  an  opportunity  of  advertising  for  a 
sufficient  length  of  time,  it  is  necessary  that  there  should  be  an  interval  of 
at  least  fifteen  days  between  the  issuing  and  return  of  the  writ,  wliich  is 
the  object  of  the  sevent(!enth  section. 

Sect.  XX.  and  XXI.  These  sections  are  intended  to  provide  a  mclhod 
by  which  other  lien  creditors  may  come  in  and  avail  themselves  of  tho 
opportunity  of  the  suit  commenced,  without  the  delay  and  expense  of  is- 
suing successive  writs  of  scire  facias.  This  mode  of  proceeding  is  not 
without  precedent  even  in  our  own  jurisprudence. 

*  This  section  is  repealed  by  Act  of  March  .'50,  1812. 


340  APPENDIX. 

for  tlie  county  aforesaid,  by  tlic  consideration  of  the  said 
court,  recovered  of  the  said  A.  B.,  to  be  levied  of  the  said 
building  and  lot  of  ground,  as  also  the  interest  thereon  from 
the  day  of  ,  A.  D.  ;  also,  the  further 

sum  of  ,  Avhich  E.  F.  lately,  in  our  said  court  for  the 

county  aforesaid,  by  the  consideration  thereof,  recovered  of  the 
said  A.  B.  to  be  levied  of  the  said  building  and  lot  of  ground, 
as  also  the  interest  thereon  from  the  day  of  ,  A.  D. 

,  amounting  in  the  whole  to  the  sum  of  ,  and 

also  the  sum  of  ,  for  the  costs  which  accrued  thereon, 

according  to  the  form  and  effect  of  an  Act  of  Assembly  of  the 
Commonwealth  of  Pennsylvania  in  such  case  made  and  pro- 
vided, and  have  you  these  moneys  before  our  judges  at 
,  at  our  County  Court  of  Common  Pleas,  there  to  be 
held  on  the  day  of  next,  to  render  unto  the 

said  C.  D.  for  his  debt,  interest  and  costs  aforesaid,  and  have 
you  then  there  this  writ,  &c. 

Sect.  22.^  Provided,  That  if  the  proceeds  of  such  building 
and  ground,  as  aforesaid,  shall  not  be  sufiicient  to  pay  the  full 
amount  of  all  debts  due,  as  aforesaid,  for  work  done  and  ma- 
terials furnished,  after  deducting  therefrom  any  prior  liens 
upon  the  same,  then  such  debts  shall  be  averaged,  and  the 
creditors  aforesaid  shall  be  paid  in  proportion  to  their  respec- 
tive demands. 

Sect.  23.  In  every  case  in  which  any  claim  shall  be  filed 
against  any  building  as  aforesaid,  and  no  scire  facias  shall 
have  issued  thereon,  it  shall  be  lawful  for  the  owner  of  such 
building,  or  any  person  interested  therein,  to  apply  by  peti- 
tion to  the  court  in  which  such  claim  shall  be  filed,  setting 
forth  the  facts,  whereupon,  such  court  may  grant  a  rule  upon 

^  Sect.  XXII.  We  suggest,  in  this  section,  that  execution  of  a  judgment 
in  tliis  proceeding  shall  be  by  writ  of  levari  facias  instead  of  the  fieri 
facias,  inquisition,  and  venditioni  exponas,  which  are  now  necessary.  The 
expense  of  holding  an  inquisition  is  so  great,  that  we  think  it  ought  not  to 
be  encountered  in  the  case  of  a  mechanic's  lien,  which  is  generally  of 
small  amount.     The  delay,  too,  is  sometimes  very  inconvenient. 

It  will  be  seen  that  the  sheriff  is  directed  by  this  writ  to  levy,  as  well 
for  the  debts  of  the  other  lien  creditors,  as  of  the  particular  plaintiff. 

Sect.  XXIII.  Is  taken  from  the  first  section  of  the  Act  of  180G. 


STATUTES.  341 

the  party  claimant,  and  others  interested,  to  appear  in  court 
at  a  time  to  be  fixed  for  such  purpose,  and  on  the  return  of 
such  rule  may  proceed  in  like  manner  as  if  a  scire  facias  had 
been  issued  by  such  claimant,  and  had  been  duly  served  and 
retui-ned. 

Sect.  24.^  The  lien  of  every  such  debt,  for  which  a  claim 
shall  have  been  filed  as  aforesaid,  shall  expire  at  the  end  of 
five  years  from  the  day  on  which  such  claim  shall  have  been 
filed,  unless  the  same  shall  be  revived  by  scire  facias,  in  the 
manner  provided  by  law  in  the  case  of  judgments,  in  which 
case,  such  lien  shall  continue  in  like  manner,  for  another 
period  of  five  years,  and  so  from  one  such  period  to  another, 
unless  such  lien  be  satisfied,  or  the  same  be  extinguished  by 
a  sheriff's  sale,  or  otherwise,  according  to  law. 

Sect.  25.  In  every  case  in  which  the  amount  of  any  claim 
as  aforesaid  shall  be  paid  or  otherwise  satisfied,  it  shall  be 
the  duty  of  the  claimant,  or  his  legal  representative,  at  the 
request  of  the  owner  of  the  building,  or  of  any  other  person 
interested  therein,  and  on  payment  of  the  costs,  to  enter  satis- 
faction on  the  record  of  such  claim,  in  the  oflBce  of  the  pro- 
thonotary  of  the  court  in  which  such  claim  shall  have  been 
entered,  which  shall  for  ever  thereafter  discharge  and  release 
the  same. 

Sect.  26.^  If  any  person  who  shall  have  received  satisfac- 
tion as  aforesaid,  shall  neglect  or  refuse  to  enter  satisfaction 
of  such  claim,  as  aforesaid,  Avithin  sixty  days  after  request, 
and  payment  of  the  costs  of  suit,  as  aforesaid,  he  shall  forfeit 
and  pay  to  the  party  aggrieved  any  sum  not  exceeding  one 
half  of  the  amount  of  such  claim,  to  be  recovered  as  debts  of 
a  like  amount  are  recoverable. 

Sect.  27.  Provided,  That  nothing  in  this  Act  contained 
shall  be  construed  to  impair,  or  otherwise  affect  the  right  of 
any  person  to  whom  any  debt  may  be  due  for  work  done,  or 
materials  furnished,  to  maintain  any  personal  action  against 
the  owner  of  the  building,  or  any  other  person  liable  therefor, 
to  recover  the  amount  of  such  debt:  Provided  further,  That 


'  Sect.  XXIV.  From  the  second  section  of  tlic  Act,  of  Marcli  :iOt!i,  1>^31. 
'  Sect.  XXVI.  and  XX VII.  From  the  Acts  of  IbOG  aud  1^31. 


342  APPENDIX. 

nothing  in  this  act  contained  shall  he  construed  to  affect  the 
relative  jurisdiction  of  the  Court  of  Common  Pleas,  and  the 
District  Court  of  the  city  and  county  of  Philadelphia,  "which 
shall  remain  as  heretofore.^ 

Sect.  28,  The  several  provisions  of  this  act  are  hereby  de- 
clared to  be  extended  to  the  county  of  Lehigh. 

Sect.  29.  The  lien  hereinbefore  given  is  hereby  declared 
to  extend  to  plumbers,  and  to  persons  furnishing  curbstone 
for  the  pavement  of  any  building  as  aforesaid,  within  the  city 
and  county  of  Philadelphia. 

Sect.  30.  This  Act  shall  take  effect  from  and  after  the 
first  day  of  September  next,  and  so  much  of  any  law  as  is 
altered  by  this  Act  is  hereby  repealed  from'  that  period. 

Act  of  4tli  April,  1837,  Pamph.  L.  298. 
An  Act  further  to  incorporate  the  district  of  the  Northern 

Liberties,  in  the  county  of  Philadelphia,  and  for  other  2>ur- 

poses. 

Sect.  11.  That  such  provisions  of  the  several  Acts  of 
Assembly  of  this  Commonwealth  which  have  been  altered  or 
supplied  by  the  following  Acts,  viz.,  "An  Act  relating  to  the 
commencement  of  actions;"  "An  Act  relating  to  reference 
and  arbitration;"  "An  Act  relating  to  assignees  for  the 
benefit  of  creditors  and  other  trustees;"  "An  Act  relating  to 
the  attachment  of  vessels;"  "An  Act  relative  to  the  organi- 
zation of  courts  of  justice;"  "An  Act  relative  to  bonds,  with 
penalties  and  official  bonds;"  "An  Act  relating  to  counties 

^  Sect.  XXVIII.  Is  new  in  terms.  Although  perhaps  no  doubt  has  been 
heretofore  expressed  of  the  right  of  mechanics  and  material  men  to  bring 
personal  actions  to  recover  the  amount  due  to  them,  notwithstanding  the 
remedy  given  by  the  Act  of  1806  ;  yet  inasmuch  as  an  Act  of  the  legislature 
has  declared,  that  when  a  remedy  is  provided  by  an  Act  of  the  Assembly, 
nothing  shall  be  done  as  at  common  law,  it  seemed  proper  to  reserve  to 
these  creditors,  in  express  terms,  a  method  of  proceeding,  without  which 
they  may  in  some  cases  be  unable  to  recover  the  amount  due  to  them. 

Sect.  XXIX.  The  concluding  section  extends  the  provisions  of  the  Act 
to  plumbers  and  persons  furnishing  curb  stone,  and  follows  in  this  respect 
the  Acts  of  1818  and  1831.  It  seems  proper  to  provide  for  them  specially 
liere,  as  they  are  not  necessarily  included  in  the  general  terms  of  the  first 
section. 


STATUTES.  343 

and  townships,  and  county  and  township  officers;"  "An  Act 
relating  to  county  rates  and  levies,  and  township  rates  and 
levies;"  "An  Act  relative  to  the  jurisdiction  and  powers  of 
the  courts;"  "An  Act  relating  to  domestic  attachments;" 
"An  Act  relating  to  executions;"  "An  Act  relating  to  insol- 
vent debtors;"  "An  Act  relating  to  lunatics  and  habitual 
drunkards;"  "A71  Act  relating  to  the  lien  of  meclianics  and 
others  upon  buildings;"  "An  Act  relating  to  orphans'  courts ;" 
"An  Act  relating  to  the  support  and  employment  of  the 
poor;"  "An  Act  relating  to  registers  and  registers'  courts;" 
"An  Act  relating  to  roads,  highways  and  bridges,"  be  and 
continue  in  force,  so  far  as  may  be  necessary  to  carry  into 
full  effect  any  proceedings  not  consummated  at  the  times  when 
the  several  xlcts  hereinbefore  enumerated  came  into  operation ; 
and  all  proceedings  since  the  passing  of  the  said  specially 
enumerated  Acts,  which  have  taken  place  in  conformity  with 
prior  existing  laws,  shall  be  deemed  and  taken  to  be  good  and 
valid  to  all  intents  and  purposes. 

Act  of  16th  April,  1838,  Pampli.  L.  626. 

An  Act  granting  certain  poivers  to  the  authorities  of  the 
cities  of  Lancaster  and  Philadelphia,  and  for  other  p)u.r- 
poses. 

Sect.  19.  That,  from  the  passage  hereof,  the  Act  entitled 
"An  Act  securing  to  mechanics  and  others  payment  for  their 
labour  and  materials  in  erecting  any  house  or  other  building 
within  the  city  of  Philadelphia,"  passed  the  seventeenth  day 
of  March,  one  thousand  eight  hundred  and  six,  with  its  sup- 
plement, passed  the  twentieth^  day  of  March,  one  thousand 
eight  hundred  and  eight,  shall  be,  and  the  same  is  hereby  de- 
clared to  be,  in  full  force  and  operation  in  the  county  of 
Bradford;  and  mechanics  and  others  in  said  county  shall  have 
like  remedy,  under  said  Acts,  as  though  they  Avere  herein 
enacted  at  full  length. 

Sect.  34.  That  the  several  provisions  of  the  Act  of  six- 
teenth of  June,  one  thousand  eight  hundred  and  thirty-six, 

*  This  sIjouU  bo  the  IweiUy-ciijhlk  day  of  3Iure'h.  ' 


344  APPENDIX. 

entitled  "An  Act  relating  to  the  lien  of  mechanics  and  others 
upon  buildings,"  arc  extended  to  Avharf-builders,  and  all  con- 
cerned in  the  making  or  constructing  of  the  same. 

Act  of  April  IGth,  1840,  Pampli.  L.  412. 

An  Act  relating  to  executions,  and  for  other  purposes. 

Sect.  8.  That  from  and  after  the  passage  of  this  Act,  the 
Act  entitled  "An  Act  relating  to  the  lien  of  mechanics  and 
others  upon  buildings,"  passed  the  sixteenth  day  of  June,  one 
thousand  eight  hundred  and  thirty-six,  shall  be  and  the  same 
is  hereby  extended  and  declared  to  be  in  full  force  and  opera- 
tion in  the  counties  of  Wayne  and  Fayette ;  and  mechanics 
and  others  in  said  counties  shall  have  like  remedy,  under  the 
said  Act,  as  though  it  was  herein  enacted  at  full  length. 

Act  of  April  28tli,  1840,  Pamph.  L.  474. 
An  Act  to  authorize  the  Governor  to  contract  with  the  cor- 
poration of  the  borough  of  Harrishurg,  for  supplying  the 
public  buildings  with  water,  and  for  other  purposes. 

Sect.  24.  That  the  lien  created  by  the  Act  entitled  "An 
Act  relating  to  the  lien  of  mechanics  and  others  upon  build- 
ings, passed  the  sixteenth  day  of  June,  one  thousand  eight 
hundred  and  thirty-six,"  shall  not  be  construed  to  extend  to 
any  other  or  greater  estate  in  the  ground  on  which  any  build- 
ing may  be  erected,  than  that  of  the  person  or  persons  in  pos- 
session at  the  time  of  commencing  the  said  building,  and  at 
whose  instance  the  same  is  erected ;  nor  shall  any  other  or 
greater  estate,  than  that  above  described,  be  sold  by  virtue 
of  any  execution  authorized  or  directed  in  said  Act. 

Act  of  March  19th,  1841,  Pamph.  L.  99. 

An  Act  to  incorporate  the  Lancaster  Coimty  3Iutual  Insu- 
rance Company,  and  to  extend  the  Mechanics'  Lien  Laio 
to  the  County  of  Clinton. 

Sect.  14.  That  the  provisions  of  the  Act  of  the  sixteenth 
of  June,  one  thousand  eight  hundred  and  thirty-six,  entitled, 
"An  Act  relating  to  the  lien  of  Mechanics  and  others,  upon 


STATUTES.  345 

buildings,"  be  and  the  same  are  hereby  extended  to  tlie  county 
of  Clinton. 

Act  of  April  Gth,  1841,  Pampli.  L.  163. 

An  Act  to  incorijorate  the  Village  of  Clarion,  in  the  County 
of  Clarion,  into  a  Borough,  and  for  other  purposes. 

Sect.  22.  That  the  several  provisions  of  the  Act  passed 
the  sixteenth  day  of  June,  one  thousand  eight  hundred  and 
thirty-six,  entitled  "An  Act  relating  to  the  lien  of  mechanics 
and  others,  upon  buildings,"  be  and  they  are  hereby  declared 
to  be  extended  to  the  counties  of  Clarion  and  M'Kean. 

Act  of  February  10th,  1842,  Pamph.  L.  22. 

An  Act  sup'plementary  to  an  Act  entitled  '''■An  Act  relating 
to  the  Lien  of  Mechanics  and  others  upon  buildings,'^ 
'passed  the  sixteenth  day  of  June,  one  thousand  eight  hun- 
dred and  thirty-six. 

Sect.  1.  That  the  provisions  of  the  Act  entitled,  "An 
Act  relating  to  the  lien  of  mechanics  and  others  upon  build- 
ings," passed  the  sixteenth  day  of  June,  one  thousand  eight 
hundred  and  thirty-six,  and  also  the  provisions  of  the  twenty- 
fourth  section  of  "An  Act  entitled  an  Act  to  authorize  the 
Governor  to  contract  with  the  corporation  of  the  Borough  of 
Ilarrisburg  for  supplying  the  public  buildings  with  water  and 
for  other  purposes,"  passed  the  twenty-eighth  day  of  April, 
one  thousand  eight  hundred  and  forty,  be  and  the  same  are 
hereby  extended  to  Bradford  and  Monroe  counties ;  and  me- 
chanics and  others  in  said  counties  shall  have  like  remedy,  un- 
der said  Act,  as  though  they  were  herein  enacted  at  full  length. 

Sect.  II.  The  nineteenth  section  of  the  Act  entitled,  "  An 
Act  granting  certain  powers  to  the  Authorities  of  the  cities  of 
Lancaster  and  Philadelphia,  and  for  other  purposes,"  passed 
the  sixteenth  day  of  April,  one  thousand  eight  hundred  and 
thirty-eight,  is  hereby  repealed,  saving  and  reserving,  however, 
the  rights  of  all  persons  to  complete  any  proceedings  begun 
under  the  same. 


346  APPENDIX. 

Act  of  March  25th,  1842,  Pamph.  L.  197. 
An  Act  to  appoint  Commissioners  to  re-survey  and  mark  that 
portion  of  the  county  line  tohich  divides  the  toivnship  of 
Bristol,  in  the  county  of  PliiJadelphia,  from  the  townsldp 
of  Cheltenham  in  the  county  of  Montgomery,  and  for  other 
purposes. 

Sect.  30.  An  Act  relating  to  the  liens  of  mechanics  and 
others  upon  buildings,  passed  the  sixteenth  day  of  June,  one 
thousand  eight  hundred  and  thirty-six,  shall  be  and  the  same 
is  hereby  extended  and  declared  to  be  in  full  force  and  ope- 
ration in  the  county  of  Greene,  and  mechanics  and  others  in 
said  county  shall  have  like  remedy  under  the  said  Act  as 
though  it  was  herein  enacted  at  full  length. 

Act  of  March  SOtli,  1842,  Pamph.  L.  213. 
An  Act  to  legalize  certain  proceedings  in  the  Court  of  Common 

Pleas  of  Adams  County,  and  for  other  purposes. 

Sect.  8.  That  the  eighteenth  section  of  an  Act  entitled  "  An 
Act  relating  to  the  lien  of  mechanics  and  others  upon  build- 
ings, passed  the  sixteenth  June,  eighteen  hundred  and  thirty- 
six,  requiring  the  publication  of  the  Avrit  of  scire  facias,  by 
advertisements  in  daily  or  weekly  newspapers,  is  hereby  re- 
pealed. 

Act  of  August  2ncl,  1842,  Pamph.  L.  4G4. 
A71  Act  annexing  the  county  of  Schuylkill  to  the  Eastern 

District  of  the  Supreme  Court,  and  for  otlier  purposes. 

Sect.  29.  That  the  provisions  of  the  twenty-ninth  section 
of  the  Act  of  sixteenth  June,  eighteen  hundred  and  thirty-six, 
entitled  "An  Act  relating  to  the  lien  of  mechanics  and  others 
upon  buildings,"  be  and  the  same  is  hereby  extended  to  the 
county  of  Dauphin. 

Act  of  April  5th,  1843,  Pamph.  L.  171. 

A  further  supplement  to  the  Act  entitled  ^^An  Act  relating  to 
the  lien  of  mechanics  and  others  on  buildings.'^ 

Sect.  1.  That  the  provisions  of  the  Act  entitled  "An  Act 
relating  to  the  lien  of  mechanics  and  others  upon  buildings," 


STATUTES.  347 

passed  the  sixteenth  day  of  June,  one  thousand  eight  hundred 
and  thirtj-six,  shall  be  extended  to  the  counties  of  Potter  and 
Jefferson. 

Act  of  April  24th,  1843,  Pamph.  L.  357. 

An  Act  to  incorporate  the  Manayunk  Fire  Engine  Company 
of  the  county  of  Philadelphia,  and  for  other  pitrposes. 

Sect.  4,  That  the  provisions  of  the  twenty-ninth  section  of 
the  Act  of  the  sixteenth  day  of  June,  Anno  Domini  one  thou- 
sand eight  hundred  and  thirty-six,  entitled  "An  Act  relating 
to  the  lien  of  mechanics  and  others  upon  buildings,"  be,  and 
the  same  is  hereby  extended  to  the  county  of  Northampton: 
Provided,  That  nothing  herein  contained  shall  be  understood 
or  construed  so  as  to  change,  alter,  impair  or  affect  any  con- 
tracts that  shall  have  been  made  before  the  passage  of  this 
Act. 

Act  of  March  19th,  1844,  Pamph.  L.  140. 

A  further  supplement  to  an  Act,  erititled  '■^  Aii  Act  relating 
to  the  lien  of  mechanics,  and  others  on  buildings." 

Sect.  1.  That  the  provisions  of  the  Act,  entitled  "  An  Act 
relating  to  the  lien  of  mechanics,  and  others,  upon  buildings," 
passed  the  sixteenth  day  of  June,  one  thousand  eight  hundred 
and  thirty-six,  shall  be  extended  to  the  county  of  Northampton : 
Provided,  however.  That  nothing  herein  contained  shall  be 
understood  or  construed,  so  as  to  change,  alter,  impair  or 
affect,  any  contracts  that  shall  have  been  made  before  the 
passage  of  this  Act. 

Act  of  May  6th,  1844,  Pamph.  L.  5G5. 
An  Act  further  to  regulate  proceedings  in  Courts  of  Justice^ 

and  for  other  p)urposes. 

Sect.  0.  That  the  lien  given  by  the  Act  of  sixteenth  Juno, 
one  thousand  eight  hundred  and  thirty-six,  entitled  "An  Act 
relating  to  the  lien  of  mechanics  and  others  upon  buildings," 
is  hereby  declared  to  extend  to  plumbers,  and  to  persons  fur- 
nishing curbstones  for  the  pavement  of  any  building  "vvilhin 
the  bounds  of  the  city  of  Lancaster. 


348  APPENDIX. 

Act  of  April  16th,  1845,  Pampli.  L.  538. 
An  Act  concerning  certain  sheriffs'  and  coroners'  sales,  and 

for  other  jmrposes. 

Sect.  5.  It  is  hereby  declared,  that  the  provisions  of  the 
Act  approved  June  16,  eighteen  hundred  and  thirty-six,  en- 
titled "An  Act  relating  to  the  lien  of  mechanics  and  others 
upon  buildings,"  according  to  the  true  intent  and  meaning 
thereof,  extend  to  and  embrace  claims  for  labour  done,  and 
materials  furnished  and  used  in  erecting  any  house  or  other 
building  which  may  have  been  or  shall  be  erected  under  or  in 
pursuance  of  any  contract  or  agreement  for  the  erection  of 
the  same,  and  the  provisions  of  the  said  Act  shall  be  so  con- 
strued; and  no  claim  which  has  been  or  may  be  filed  against 
any  house  or  other  building,  or  the  lien  thereof,  or  any  pro- 
ceedings thereon,  shall  be  in  any  manner  affected  by  reason 
of  any  contract  having  been  entered  into  for  the  erection  of 
such  building,  but  the  same  shall  be  held  as  good  and  valid 
as  if  the  building  had  not  been  erected  by  contract:  Provided, 
That  no  case  shall  be  affected  by  this  section,  which  may  have 
been  decided  by  the  Supreme  Court,  or  in  which  the  proceeds 
of  the  sale  of  any  real  estate  may  have  been  distributed  by 
the  decree  of  any  court,  from  which  no  appeal  has  been  taken. 

Act  of  March  11th,  1846,  Pcamph.  L.  113. 

Supplement  to  an  Act,  entitled  "  Jin  Jict  relating  to  the  lieiis 
of  mechanics  and  others  upon  buildi7igs." 

Sect.  1.  That  the  provisions  of  the  Act  relating  to  me- 
chanics' liens  passed  the  sixteenth  day  of  June,  one  thousand 
eight  hundred  and  thirty-six,  with  its  supplements;  and  the 
fifth  section  of  the  Act  entitled  "An  Act  concerning  certain 
sheriffs'  and  coroners'  sales,  and  for  other  purposes,"  passed 
April  sixteenth,  eighteen  hundred  and  forty-five,  be  and  the 
same  are  hereby  extended  to  Pike  county. 

Act  of  April  13th,  1846,  Pamph.  L.  327. 

Jl  supplement  to  the  Act  entitled  "■An  Act  relating  to  the  lien 
of  mechanics,  and  others,  upon  buildings,^'  and  for  other 
purposes. 


STATUTES.  349 

Sect.  1.  That  the  several  provisions  of  the  Act  entitled 
"An  Act  relating  to  the  lien  of  mechanics,  and  others,  upon 
buildings,"  passed  sixteenth  of  June,  Anno  Domini  one  thou- 
sand eight  hundred  and  thirty-six,  together  mih  the  several 
supplements  thereto,  be,  and  the  same  are  hereby  extended 
to  the  county  of  Adams. 

Act  of  April  lOtb,  1848,  Pamph.  L.  449. 
^71  Act  extending  the  chancery  powers  of,  and  to  the  juris- 
diction and  proceedings  in,  certain  courts. 
Sect.  o.  The  District  Courts  of  the  counties  of  Philadelphia, 
Lancaster,  and  Alleghany,  shall  have  jurisdiction  of  all  joint 
claims  against  two  or  more  buildings  owned  by  the  same  per- 
son or  persons,  now  filed,  or  that  may  be  filed  in  said  respec- 
tive counties,  in  accordance  with  the  provisions  of  an  Act  en- 
titled "An  Act  relating  to  the  liens  of  mechanics  and  others, 
upon  buildings,"  passed  June  16th,  one  thousand  eight  hun- 
dred and  thirty-six,  wherein  such  mechanics  and  others  claim 
a  sum  equal  to  that  of  which  said  courts  have  respectively  ju- 
risdiction, according  to  the  several  Acts  heretofore  passed,  con- 
stituting and  regulating  them,  notwithstanding  the  several  ap- 
portioned claims  therein  be  less  than  the  sum  of  which  said 
courts  have  jurisdiction  as  aforesaid:  Provided,  That  nothing 
herein  contained  shall  prevent  or  impair  the  issuing  and  exe- 
cuting of  separate  writs  of  execution  as  heretofore,  against  all 
or  any  of  such  several  apportionments. 

Sect.  6.  Every  judgment  heretofore  obtained  in  any  of 
said  courts  upon  any  apportioned  claim  filed  in  accordance 
with  the  above  section,  and  those  to  which  such  section  is  a 
supplement,  in  cases  Avhere  the  amount  of  such  judgment  is 
less  than  that  of  which  such  Court  has  usual  jurisdiction,  and 
all  writs  of  execution  thereon  had,  shall  be  deemed  good  and 
valid;  and  any  person  or  persons  purchasing  at  any  sale  held 
in  pursuance  thereof,  such  property  taken  in  execution,  shall 
be  and  hereby  is  or  arc  declared  to  have  as  full  and  indispu- 
table title  to  such  property  so  purchased  as  he  or  they  would 
have  if  tlie  judgment  on  which  execution  and  sale  was  had 
had  amounted  to  the  sum  of  which  such  court  has  usual  juris- 
diction. 


350  APPENDIX. 

Act  of  Janutiry  23rd,  1849.  Pampli.  L.,  C8G. 

An  Act  relating  to  the  lien  of  mechanics  and  others,  and  to 
sales  to  enforce  the  payment  of  liens. 

Sect.  1.  That  the  provisions  of  the  twenty-ninth  section 
of  the  Act  of  the  sixteenth  day  of  Juno,  eighteen  hundred 
and  thirty-six,  entitled  "an  Act  relating  to  the  lien  of  me- 
chanics and  others  upon  buildings,"  be  and  the  same  is  hereby 
extended  to  the  county  of  Chester;  Provided,  That  nothing 
herein  contained  shall  alter,  impair  or  affect  any  contracts 
that  shall  have  been  made  before  the  passage  of  this  Act. 

Act  of  March  24th,  1849,  Pamph.  L.  G75. 

Ji  supplement  to  an  Act  entitled  '•^Jin  Act  relating  to  the  lien 
of  mechanics  and  others  upon  buildings,"  passed  the  six- 
teenth day  of  June,  Anno  Domini  one  thousand  eight  hun- 
dred and  thirty-six. 

Sect.  1.  That  from  and  after  the  passage  of  this  Act,  the 
several  provisions  of  the  Act  of  Assembly  passed  the  sixteenth 
day  of  June,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  thirty-six,  entitled  "An  Act  relating  to  the  lien  of 
mechanics  and  others  upon  buildings,"  be,  and  the  same  are 
hereby  extended  to  plumbers  within  the  county  of  Chester. 

Sect.  2.  That  it  shall  be  lawful  for  any  mechanic  or  ma- 
terial man  in  the  city  or  county  of  Philadelphia,  and  county 
of  Chester,  who  performs  work  and  furnishes  materials,  to  in- 
clude both  in  the  same  claim  filed ;  and  where  the  value  or 
amount  of  the  work  or  materials  can  only  be  ascertained  by 
measurement  when  done,  or  shall  be  done  by  contract,  for  a 
stipulated  sum,  it  shall  be  lawful  to  file  a  statement  of  the 
time  when  the  work  was  commenced  and  when  finished,  and 
of  the  aggregate  price  of  the  work  and  materials,  and  all 
claims  heretofore  filed  in  conformity  herewith,  and  not  decided 
judicially,  are  hereby  confirmed. 

Sect.  3.  That  the  several  provisions  of  the  Act  to  which 
this  is  a  supplement,  be  and  they  are  hereby  extended  to  paper 
hangers. 


STATUTES.  351 

Act  of  April  9th,  1849,  Pamph.  L.  495. 

An  Act  relative  to  mechanics^  liens  in  the  counties  of  West- 
moreland, Columbia  and  Elk. 

Sect.  1.  That  tlie  provisions  of  the  Act  entitled  "An  Act 
relating  to  the  lien  of  mechanics  and  others  upon  buildings," 
passed  the  sixteenth  day  of  June,  one  thousand  eight  hundred 
and  thirty-six,  be  and  the  same  is  hereby  extended  to  the 
counties  of  Westmoreland  and  Elk. 

Sect.  2.  The  provisions  of  said  Act  are  hereby  further  ex- 
tended to  every  fixture  in  and  about  iron  works  and  mines, 
and  to  every  bridge  and  building  where  work  is  done  or  ma- 
terials furnished  in  the  construction  of  such  fixture,  in  and 
about  mines  or  iron  works,  bridge  or  building,  for  any  cor- 
porate body,  or  for  a  contractor  in  the  employment  of  a  cor- 
porate body;  and  the  process  to  obtain  satisfaction  of  any 
judgment  obtained  upon  such  lien,  in  any  case  where  by  the 
existing  laws  no  lien  is  given,  for  labour  or  materials  done  or 
furnished  to  a  corporate  body,  shall  be  by  writ  of  sequestra- 
tion, as  approved  by  the  seventy-third  section  of  the  Act  of 
sixteenth  of  June,  one  thousand  eight  hundred  and  thirty-six, 
entitled  "An  Act  relating  to  executions;"  Provided^  That 
this  Act  shall  not  be  construed  to  extend  to  any  case  in  which 
work  has  been  done  or  materials  furnished  before  the  passage 
of  this  Act,  unless  the  lien  is  filed  within  six  months  after  the 
last  work  is  done  or  the  last  materials  furnished:  And  i:>ro- 
vided  further,  That  this  section  shall  only  extend  to  the  coun- 
ties of  Columbia  and  Elk. 

Act  of  April  25th,  1850.  Pamph.  L.  576. 
An  Art  relating  to  the  hail  of  executrixes ;  to  j^artition  in  the 
Orphans'  Court  and  Common  Pleas;  to  coloured  convicts 
in  Philadelphia  ;  to  the  limitation  of  actions  against  corpo- 
rations ;  to  actions  enforci7ig  the  payment  of  ground  rent ;  to 
trustees  of  married  women;  to  appeals  from  aioards  of  ar- 
bitrators by  corporations ;  to  hawkers  and  pedlers  in  (he 
counties  of  Butler  and  Union;  to  the  p)ayment  of  casts  in 
actions  by  informers  in  certain  cases ;  to  taxing  lands  situ- 
ate in  different  townships ;  and  in  relation  to  fees  of  county 


352  APPENDIX. 

treasurers  of  Lycoming^  Clinton  and  Schwjlklll;  to  jjvo- 
vide  for  recording  the  accounts  of  executors,  administrators, 
guardians  and  auditor  s  reports;  and  to  amend  and  alter 
existing  latvs  relative  to  the  administration  of  justice  in 
this  Commomvealth. 

Sect.  38.  That  the  several  laws  of  this  Commonwealth 
authorizing  an  apportionment  of  the  amount  due  for  materials 
furnished  to  two  or  more  buildings  owned  by  the  same  person, 
among  the  said  buildings,  shall  extend  to  and  shall  authorize 
in  similar  cases  an  apportionment  for  work  done,  and  for  work 
done  and  materials  furnished,  where  the  same  are  furnished 
under  one  contract,  as  fully  and  in  the  same  manner  as  is 
now  authorized  and  allowed  in  the  case  of  materials  furnished. 

Act  of  26th  April,  1850,  Pampli.  L.  G12. 

An  Act  to  incorporate  a  company  to  build  a  p)lank  road  from 
Titusville   in    Crauford   county,   to    Warren    in    Warren 
county  ;  and  relative  to  mechanics  liens  and  school  districts 
in  Carbon  county;  to  the  borough  of  Milton,  in  Northum- 
berland county  ;  to  the  elections  in  Franconia  toivnship;  and 
the  borough  of  Norristown;  and  to  tax  collectors  in  3Iont- 
gomery  county  ;  and  to  the  courts  of  Bucks  comity. 
Sect.  9.     That  from  and  after  the  passage  of  this  Act,  the 
Act  entitled,  "An  Act  relating  to  the  lien  of  mechanics  and 
others  upon  buildings,"  passed  the  sixteenth  day  of  June,  one 
thousand  eight  hundred  and  thirty-six,  shall  be  and  the  same 
is  hereby  extended  and  declared  to  be  in  full  force  and  ope- 
ration in  the  county  of  Carbon;  and  mechanics  and  others 
in  said  county,  shall  have  like  remedy  under  the  said  Act  as 
though  it  was  herein  enacted  and  recited  at  full  length. 

Act  of  April  21st,  1854,  Pampli.  L.  428. 

An  Act  relative  to  Mechanics'  Liens  in  the  County  of  Schuyl- 
hill. 

Sect.  1.  That  the  several  provisions  of  an  Act  entitled 
"An  Act  relating  to  the  lien  of  mechanics  and  others  upon 
buildings,"  approved  the  sixteenth  day  of  June,  one  thousand 
eight  hundred  and  thirty-six,  and  the  several  supplements 


STATUTES.  353 

thereto,  are  hereby  extended  to  the  improvements,  machinery 
and  fixtures  erected  by  tenants  of  coal  lease  estates,  on  lands 
of  others  in  the  County  of  Schuylkill,  and  to  all  mechanics 
and  material  men  doing  work  and  furnishing  materials  there- 
for; Provided.,  That  the  lien  hereby  created,  shall  extend  only 
to  the  interest  of  the  tenant  therein. 

Act  of  April  14th,  1855,  Pamph.  L.  238. 
^i  Supplement  to  an  Act  entitled  "J.»  Act  relating  to  the 

Lien  of  .MecJianics  and  others  upon  buildings,"  passed  the 

sixteenth  day  of  June,  Anno  Domini  one  thousand  eight 

hundred  and  thirty-six. 

Sect.  1.  That  from  and  after  the  passage  of  this  Act,  the 
several  provisions  of  the  Act  to  which  this  is  a  supplement  be, 
and  the  same  are  hereby  extended  to  plumbing,  gas  fitting 
and  furnishing  and  erection  of  grates  and  furnaces. 

Sect.  2.  That  whenever  the  items  of  a  mechanic  or  ma- 
terial man's  bill,  for  work  done  or  materials  furnished,  con- 
tinuously, towards  the  erection  of  any  new  building,  are,  in  any 
part,  bona  fide  within  six  months  before  the  filing  of  the  claim 
therefor,  the  lien  shall  be  valid  for  the  whole ;  and  any  lien 
heretofore  filed  within  six  months  after  furnishintj  the  last 
item  of  a  continuous  bill,  shall  be  good  and  valid,  the  same  as 
if  the  whole  bill  were  furnished  within  six  months. 

Sect.  3.  That  every  claimant  having  a  claim  filed  for  work 
or  materials,  or  both,  who  shall  afterwards  proceed  to  perform 
further  work,  or  furnish  other  materials,  or  both,  may  make 
suggestions  thereof  on  tlie  same  record,  and  filing  a  statement 
of  the  amount  and  particulars  thereof,  which  may  be  recovered, 
with  the  original  claim,  under  the  writ,  but  if  the  original 
claim  shall  have  been  sued  out,  then  a  separate  scire  facias 
may  be  issued  for  the  supplemental  claim. 

Act  of  April  2Gth,  1855,  Pamph.  L.  303. 
A  sup'plement  to  an  Act,  entitled  "^1m  Act  relatiiig  to  the  liens 
of  Mechanics  and  others,  and  to  sales  to  enforce  the  pay- 
ment of  liens." 

Sect.  1.  That  so  mucli  of  tlie  tliird  section  of  tlie  Act  en- 
titled "An  Act  relating  to  the  lien  of  mechanics  and  others, 
23 


354  APPENDIX. 

and  sales  to  enforce  the  payment  of  liens,"  approved  Janu- 
ary twenty-tliird,  one  thousand  eight  hundred  and  forty-nine, 
as  provides  for  the  redemption,  "within  one  year,  of  property 
sold  for  registered  taxes  or  municipal  claims,  is  herehy  de- 
clared and  construed  to  extend  and  apply  to  all  sales  for  liens 
or  charges  for  the  expenses  of  removing  nuisances,  and  that 
tliis  is  and  shall  he  taken  to  be  the  true  intent  and  meaning 
of  the  aforesaid  section  of  the  said  Act. 

Act  of  April  21st,  1856,  Pamph.  L.  49G. 

AfitrtJier  Supplement  to  an  Act  relating  to  the  Lien  of  Me- 
chanics and  others  upon  buildings,  passed  the  sixteenth  day 
of  June,  Anno  Domini,  eighteen  hundred  and  thirty-six. 

Sect.  1.  That  from  and  after  the  passage  of  this  Act,  the 
provisions  of  the  Act  entitled  "An  Act  relating  to  the  lien  of 
mechanics  and  others,  upon  buildings,"  passed  the  IGth  day 
of  June,  Anno  Domini  1836,  and  the  supplements  thereto,  be, 
and  the  same  are  hereby  extended,  as  fully  as  the  same  are 
now  applicable  to  buildings,  to  every  steam  engine,  coal 
breaker  or  parts  thereof,  pump  gearing,  hoisting  gearing,  fix- 
ture or  machinery  in  and  about  mills  of  any  kind,  iron  or 
coal  works,  coal  mines  and  iron  mines. 


FORMS.  355 


FORMS. 


I. 


THE  SEVERAL  CLAIMS. 

A.  B.         ^  In  the  Court 

V8.  I  for  County 

C.  D.  owner/        [         of  the  Term  of  185 

E.  F.  contractor.  J  No. 

A.  B.^  of  the  county  of  ,  carpenter,^  who  is  en- 

titled to  the  benefit  of  the  provisions  of  the  Act  of  assembly 
passed  the  16th  day  of  June,  1836,  entitled  "An  Act  relating 
to  the  lien  of  mechanics  and  others  upon  buildings,"  and  the 
several  supplements  thereto,  in  respect  to  the  lien  and  remedy 
thereby  given  for  the  payment  of  a  debt  due  to  him,  contracted 
for  work  done,*  by  him,  for  and  about  the  erection  and  con- 
struction, and  upon  the  credit  of  a  building^  erected  within 
said  county,  hereinafter  more  particularly  described ;  in  com- 
pliance with  said  provisions,  sets  forth,  in  this  claim  or  state- 
ment of  his  demand,  as  follows,  viz. : 


^  If  the  owner  cannot  be  ascertained  with  certainty,  insert  the  name  of 
one  who  is  believed  and  reputed  to  be  the  owner,  calling  him  "reputed 
owner."  If  the  same  person  is  both  owner  and  contractor,  call  him  "owner 
and  contractor." 

*  If  several  persons  have  a  joint  claim,  state  all  their  names;  and,  if  they 
be  partners,  their  partnership  name. 

^  It  appears  not  to  be  necessary  to  state  the  claimant's  trade  or  occupa- 
tion, but  it  is  safer  to  do  so. 

*  If  the  claim  be  for  "materials  furnished,"  or  for  both  "work  done  and 
materials  furnished,"  so  express  it,  here. 

*  "J'his  averment  docs  not  ajjpear  to  be  absolutely  essential,  but  it  is,  per- 
haps, safest. 


356  APPENDIX. 

The  said  C.  D.  was  the  owner  ^  of  said  building  at  the  time 
the  same  was  commenced;-  and  the  said  E.  F.^  was  the  con- 
tractor, architect  or  buiklcr,  at  whose  instance  said  work  was 
done,  and  witli  whom  the  contract  of  the  said  A.  E.  therefor, 
was  made.' 

The  amount  claimed  to  he  due  to  him,  the  said  A.  B.  is 
dollars  and  cents.^     This  sum  is  due  for  car- 

penter's work^  done  by  the  said  A.  B.,  for  and  about  the 
erection  and  construction  of  said  building.'  The  statement 
hereto  annexed,  as  part  hereof,  sets  forth  particularly  the 
nature  and  kind  of  the  work  done,**  and  the  time  when  the 
same  was  done.^ 


^  If  no  certainty  can  be  reached,  say  "reputed  owner." 
^  There  is  a  want  of  positivcness  in  the  decisions,  but  it  appears  to  be 
safer  to  make  the  owner,  at  that  time,  a  defendant.     If  he  was,  also,  owner 
when  the  work  was  done,  add  such  a  statement,  and,  if  he  still  continues  the 
owner,  it  may  be  well  to  insert  that,  'also. 

^  If  the  owner  was,  also,  contractor,  the  words  "the  said  E.  F.  was,"  should 
be  omitted. 

*  It  appears  to  be  proper  under  the  present  decisions,  that  the  subcon- 
tractor be  made  the  defendant,  and  mentioned  here,  if  the  claimant's  con- 
tract were  with  him,  directly. 

^  This  maybe  larger  than  the  sum  proved,  but,  if  it  be  less,  no  more  can 
be  recovered. 

.  ^  If  for  materials,  say,  "materials  furnished,"  designating  the  kind  of  ma- 
terials. If,  for  "work  done,  and  materials  furnished,"  so  express  it;  de- 
signating the  kind  of  work,  and  materials. 

'  If  part  of  the  work  was  done  upon  out-houses,  fences,  sheds,  &c.,  it  ap- 
pears to  be  safer  to  designate  them  spccificallj';  and  not  to  add  the  words 
often  added  here,  "with  the  appurtenances."  Thus,  "and,  also,  of  a  certain 
privy,  appurtenant  thereto,  built  upon  ground  immediately  adjacent  thereto, 
belonging  in  like  manner  to  the  owner  of  said  building,  and  necessary  for 
the  ordinary  and  useful  purposes  thereof." 

^  Or  "the  kind  and  amount  of  materials  furnished,  and  the  time  when 
they  were  furnished;"  or  "the  nature  and  kind  of  the  work  done,  and  the 
kind  and  amount  of  materials  furnished,  and  the  time  when  the  materials 
were  furnished,  and  the  work  was  done." 

°  If  the  work  is  done  or  the  materials  are  furnished,  under  a  gross  con- 
tract, this  reference  to  a  statement  annexed  may  be  omitted.  The  aver- 
ment in  such  a  case  after  the  word  "building,"  should  be  thus:  "under  and 
in  pursuance  of  a  written  contract  or  agreement  with  said  E.  F.  a  copy  of 
which  is  hereto  annexed,"  or,  "under  and  in  pursuance  of  a  parol  contract 


FORMS.  357 

Said  building  is  a  dwelling-liouse^  of  stories,  having 

a  front  of  feet,  and  a  depth  of  feet,  and 

storied  back  buihlings  feet  deep,  by  broad,^  situ- 

ate upon  a  certain  lot  or  piece  of  land  within  the  county  of 


or  agreement,  between  the  said  A.  B.  and  E.  F.,  made  on  or  abont  tli© 
day  of  ,  last,  in  substance,  as  follows,  viz. : — The  claim  should 

then  proceed  to  aver  as  follows:  "which  work  was  done  (or  materials  were 
furnished,  or  work  was  done  and  materials  were  furnished)  under  and  in  pur- 
suance of  said  contract  or  agreement,  between  the  day  of 
and  the              day  of                   last  past."     This  last  date  must  be  within 
six  months  from  the  time  of  filing  the  claim. 

In  case  the  statement  be  appended,  it  is  a  very  important  part  of  the  claim, 
and  should  be  drawii  by  counsel,  with  great  care.  It  need  not  accord,  ex- 
actly with  the  entries  in  the  claimant's  book,  if  any,  though  it  should  con- 
form to  them,  as  nearly  as  is  consistent  with  safety.  If  the  work  is  by  the 
day,  the  dates,  and  nature  and  the  price  or  value  of  every  day's  work,  should, 
if  possible,  be  given.  If  by  pieces  or  jobs,  the  day  of  beginning  and  com- 
pleting each  piece  or  job  should  be  set  forth,  and  its  nature,  with  the  con- 
tract, or  quantum  meruit,  price  or  value  of  the  same  by  measurement  or 
otherwise.  If  the  claim  be  for  materials,  their  kind  or  nature  should  be 
given,  and  the  date,  quantity  or  amount  and  value  of  each  lot  delivered. 

If  any  part  of  the  work  has  been  done,  or  materials  furnished,  more  than 
six  moutlas  before  filing  the  claim,  it  should  be  connected  with  that  done  or 
furnished  within  the  six  months,  by  an  averment,  that  all  were  done  or  fur- 
nished under  one  continuing  contract,  or  were  done  or  furnished  "  continu- 
ously." 

The  statement  should,  in  respect  of  date,  nature  and  kind,  quantity  or 
amount,  and  price  or  value,  carefully  distinguish  work  from  materials;  un- 
less they  can  only  be  ascertained  by  measurement,  together,  or  are  done, 
together,  under  one  contract.  In  such  cases,  a  statement  of  the  time  when 
the  work  was  begun  and  finished,  and  of  the  aggregate  price  of  both  work 
and  materials,  is  allowed  by  Act  of  Assembly;  at  least,  in  tlie  counties  of 
Philadelphia  and  Chester. 

^  The  character  or  object  of  the  building,  may  be  important. 

^  If  part  of  the  work  has  been  done  upon  out  buildings,  or  aj»purtenanccs, 
it  would  be  better,  perhaps,  to  mention  and  describe  tliem. 

*  Great  accuracy  and  particularity  are  not  i-equired  in  these  averments; 
but  it  is  best  to  describe  the  lot,  which  is  alleged  to  be  bound,  as  particu- 
larly, if  possible,  as  in  a  deed;  by  streets,  courses,  distances,  and  bounda- 
ries. If  the  proceeding  to  designate  the  boundaries,  contemplated  by  the 
Act,  has  Ijcen  had,  of  course  there  will  be  no  diflieulty  or  danger.  If  it 
has  not  been  had,  the  claimant  must  exercise  care,  in  including  what  js 
covered  by  the  building,  and  so  much  other  ground,  inunodialuly  adjacent 


358  APPENDIX. 

And  the  said  A.  B.  now  here  in  the  manner  and  form,  and 
■within  the  time  designated  by  said  Act,  and  according  to  the 
provision,  thereof,  files  this  chxira  or  statement  of  his  demand, 
for  the  purposes  and  objects  of  said  Act  and  its  supplements, 
and  to  have  and  obtain  the  full  lien,  remedy,  force  and  effect 
therein  provided  for  the  payment  of  said  debt  against  said 
building,  and  the  ground  covered  thereby,  and  so  much  other 
ground  immediately  adjacent  thereto,  and  belonging,  in  like 
manner,  to  the  owner  of  such  building,  as  may  be  necessary 
for  the  ordinary  and  useful  purposes  thereof,  from  the  com- 
mencement of  the  said  building. 

II. 

TUE    JOINT    APPORTIONED    CLAIM. 

[Eiititled  as  the  last.) 
A.  B.  of  the  county  of  ,  lumber  merchant,  who 

is  entitled  to  the  benefit  of  the  provisions  of  the  Act  of  As- 
sembly, passed  the  l(3th  day  of  June,  183G,  entitled  "An 
Act  relating  to  the  lien  of  mechanics  and  others  upon  build- 
ings," and  the  several  supplements  thereto,  in  respect  to  the 
lien  and  remedy  for  the  payment  of  a  debt  due  to  him,  con- 
tracted for  materials  furnished^  by  him  for  and  about  the 
erection  and  construction  of  several  buildings  adjoining  each 
other,  erected  within  said  county,  hereinafter  more  particu- 
larly described ;  in  compliance  with  said  provision,  sets  forth, 
in  this  his  claim  or  statement  of  his  demand,  as  follows,  viz.: 
The  said  C.  D.  was  the  owner  of  said  buildings,  at  the  time 
when  the  same  were  commenced,  and  the  said  E.  F.  was  the 


thereto,  and  belonging,  in  lilve  manner,  to  the  owner  of  the  building,  as  may 
be  necessary  for  the  ordinary  and  useful  purposes  of  such  building.  In  a 
city  this  is  not  difficult,  and  objection  is  seldom  made  to  the  metes  and 
bounds  designated  in  the  claim,  or  in  the  levari  facias.  If  the  claimant 
includes  less,  in  his  claim,  than  he  might  have  included,  he  cannot  sell  more; 
but,  if  he  includes  too  much,  he  will,  probably,  be  only  narrowed  or  con- 
fined to  what  is,  in  the  regular  way,  ascertained  to  be  bound  by  his  lien. 

'  The  Act  of  18.30  authorizes  an  apportionment  "for  work  done  and  for 
work  done  and  materials  furnished,  where  the  same  are  furnished  under  one 
contract." 


FORMS.  359 

contractor,  architect,  or  builder,  at  •wliose  instance  said  work 
lyas  done,  and  T»'itli  "whom  the  contract  of  the  said  A.  B.  there- 
for was  made. 

The  amount  claimed  to  be  due  to  him,  the  said  A.  B.  is 
dollars  and  cents.     This   sum  is   due  for 

lumber  furnished  by  the  said  A.  B.,  for  and  about  the  erection 
and  construction  of  said  buildings.  The  statement  hereto  an- 
nexed as  part  hereof,  sets  forth  particularly  the  kind  and 
amount  of  the  said  materials  furnished,  and  the  time  when 
the  same  were  furnished. 

Said  several  adjoining  buildings,  are  dwelling-houses,  of 
stories,  &c.,  &c.,  &c.,  &c.,  situate  one  of  them  on  a 
certain  lot  or  piece  of  land  within  said  county  of 
&c.  anuther  of  them,  &c. 

And  the  said  A.  B.  hereby  designates  the  amount  which  he 
claims  to  be  due  to  him  on  each  of  said  buildings,  as  follows, 
viz.  He  designates  the  sum  of  to  be  due  to  him  on 

said  building  first  herein  above  described,  &c.  He  designates 
the  sum  of  to  be  due  to  him  on  said  building  second 

herein  above  described. 

And  the  said  A.  B.,  now,  here,  in  the  manner  and  form, 
and  within  the  time  designated  by  said  Act,  and  supplements, 
and  according  to  the  provisions  thereof,  files  this  claim  or 
statement  of  his  demand,  for  the  purposes  and  objects  of  said 
Act  and  supplements,  and  to  have  and  obtain  the  full  lien, 
remedy,  force  and  effect,  therein  provided,  for  the  payment  of 
said  debt,  against  said  several  buildings,  and  the  ground  respec- 
tively covered  thereby,  and  so  much  other  ground  immediately 
adjacent  to  them,  respectively,  and  belonging,  in  like  manner, 
to  the  owner  of  such  building,  as  may  be  necessary  to  the  or- 
dinary and  useful  purposes  thereof  respectively,  from  the  com- 
mencement of  said  building.* 

III. 

THE  SCIRE  FACIAS. 
A  form  of  tliis  writ  is  given  in  section  15,  of  the  Act  of  1830. 

*  The  notes  to  the  first  claim,  generally,  aj)i>ly  to  this  claim. 


3  GO  APPENDIX. 

IV. 

PETITION  UNDER  THE  23rD  SECTION  OP  THE  ACT  OF  1836. 

Entitled  as  of  the  Term  and  No.  of  the  lien. 

To  the  Honourable,  the  Judges  of  the  Court  for  the 

of 

The  petition  of  C.  D.^  respectfully  showcth  :  that  on  the 
day  of  185  ,  to  term  of  this  court, 

No.  A.  B.  filed  an  alleged  claim  under  the  Act  entitled  "An 
Act  relating  to  the  lien  of  Mechanics  and  others  upon  build- 
ings," passed  the  16th  of  June,  1836,  and  the  several  supple- 
ments thereto,  against  a  certain  building  and  lot  or  piece  of 
ground  of  ■which  your  petitioner  is  the  owner  p  that  your  peti- 
tioner denies  the  validity  of  said  claim,  and  has  a  just  and  legal 
defence  thereto  ;^  but  no  opportunity  has  been  given  to  him  to 
assert  said  invalidity,  with  effect,  or  to  make  said  defence,  no 
scire  facias  having  been  issued  thereon. 

Your  petitioner  therefore  prays  this  Honourable  court,  ac- 
cording to  the  Act  in  such  case  provided,  to  grant  a  rule  upon 
the  said  A.  B.  to  appear  before  your  Honours,  at  a  time  to  be 
fixed  for  such  purpose,  and  that,  on  the  return  of  said  rule, 
your  petitioner  may  proceed,  in  like  manner  as  if  a  scire  facias 
had  been  issued  by  such  claimant,  and  had  been  duly  served 
and  returned. 

And  your  petitioner  will  ever  pray,  &c. 

V. 

rORM    OF    THE   RULE    ON    THE    ABOVE    PETITION. 

Untitled  as  of  the  term  and  Wo.  of  the  lien. 

And  now  the  petition  of  C.  D.  this  day  filed, 

being  heard,  the  court  grant  a  rule  on  the  said  K.  B.  returna- 


^  The  owner  or  any  person  interested  in  tlie  bviilding. 

^  Or,  if  not  owner,  but  otherwise  interested,  state  the  nature  of  the  inte- 
rest. 

^  The  Act  requires  the  petition  to  set  forth  the  facts.  It  would,  perhaps 
be  safer,  therefore,  to  state  the  ground  of  objection,  or  defence. 


FORMS.  361 

ble  on  to  show  cause  why  the  petitioner  shouhl  not 

proceed  in  like  manner  as  if  a  scire  facias  had  been  issued, 
according  to  the  Act  in  such  case  provided. 

VI. 

ORDER  OF  THE  COURT  UP0:N'  THE  ABOVE  PETITION. 

That  in  this  case,  the  plaintiff  shall  file  a  statement  or  de- 
claration, upon  the  contract  under  which  the  said  work  was 
done,  stating  the  same  particularly;  if  any  special  contract 
were  made,  annexing  thereto,  as  a  part  thereof,  a  bill  of  the 
items  or  particulars  of  the  demand,  as  fully  as  they  appear 
upon  the  plaintiff's  book  of  entries,  if  any  such  are  intended 
to  be  offered  in  Bvidence  on  the  trial;  and  if  no  such  entries 
are  to  be  offered,  then  the  said  bill  shall  state  particularly  the 
dates  or  times  at  which  said  work  and  labour  were  performed. 
And  the  court  further  direct,  that  the  defendant  allege,  par- 
ticularly, his  defence  to  such  parts  of  the  plaintiff's  statement, 
or  to  such  item  of  his  bill  of  particulars,  specifying  the  same, 
as  he  intends  to  dispute;  and  neither  party  shall  be  allowed 
on  the  trial  to  allege  or  prove  any  matter  or  thing  not  con- 
tained in  the  statement  or  bill  of  particulars,  exception,  or  de- 
fence. The  plaintiff  to  comply  with  this  order  on  or  before 
the  7th  day  of  June,  1837,  or,  in  default  thereof,  judgment 
of  non.  pros,  to  bo  entered  and  the  claim  to  be  stricken  from 
the  record.^ 

VII. 

PLAI^"TIFP'S    STATEMENT    UNDER    SAID  ORDER.* 

VIII. 

defendant's   allegations  in  DEFENCE  UNDER  SAID    ORDER.^ 


^  See  Borton  v.  Morris,  2  M.  10!). 

^  These  depend  so  entirely  upon  the  circumstances  of  each  cft?o  that  wo 
must  leave  them  to  the  onlinary  rules  of  statements  and  declarulions,  and 
the  peculiar  terms  of  the  order. 


362  APPENDIX. 

IX. 

ENTRY   OF   THE    SUGGESTION    UNDER   THE  19tH  SECTION. 

Entitled  as  of  the  scire  facias  already  issued. 
On  the  day  of  &c.,  came  E.  F.  into 

the  said  court,  and  suggested  that  he,  the  said  E.  F.,  on 
the  day  of  &c.,  filed  in  the  said  court,  ac- 

cording to  the  form  of  the  Act  of  Assembly  in  such  case  made 
and  provided,  a  claim  against  the  building  described  in  the 
said  writ  of  scire  facias,  and  against  the  said  C.  D.  as  owner 
of  the  said  building,  [or  as  reputed  owner,  as  the  case  man  he,) 
and  against  G.  II.  as  contractor,  &c.,  {according  to  the  fact,) 
for  work  and  labour  [or  for  materials  furnished,  ^'C,  as  the 
case  may  he,)  as  follows,  to  wit:  [here  set  out  fully  a  copy  of 
the  claim  filed,)  as  appears  of  record.  And  thereupon  the 
said  E.  F.  asked  leave  of  the  court  that  his  said  suggestion 
might  be  entered  upon  record  in  the  said  cause,  together  with 
the  particulars  of  his  said  claim,  which  was  allowed.  And 
thereupon,  on  motion  of  the  said  E.  F.  by  J.  K.  his  attorney, 
a  rule  was  granted  upon  the  said  C.  D.  to  appear  and  plead 
to  the  said  suggestion,  on  ten  days'  notice  of  the  said  rule  and 
suggestion,  or  show  cause  why  he  should  not,  or  in  default 
thereof,  that  judgment  be  entered  against  him  for  want  of  a 
plea.^ 

X. 

THE   LEVARI    FACIAS. 

A  form  of  this  writ  is  given  in  the  2\st  section  of  the  Act  of 

1836. 

1  See  Noyes  v.  Fritz,  2  M.  162. 


INDEX. 


ABATEMENT. 

That  one  of  two  contractors  is  not  named,  is  pleadable  in,  209, 

274. 

ACTION. 

Act  of  1803,  provided  for,  as  mode  of  recovering  debt,  219. 
No  provision  as  to  form  of,  219. 
Probably  special,  intended,  220. 
Taking  a  bond  and  warrant  is  not,  220. 
Assumpsit  against  contractor  is  not,  220. 
Personal,  .SI 2. 

ACTS  OF  ASSEMBLY. 

Act  of  1T84,  relating  to  persons  employed  on  vessels,  &c.,  33. 

Similar  to  Mechanics'  lien  laws,  33. 
Early  Acts  imperfect,  34. 
Acts  extending  the  system  locally,  48,  &c. 
Act  of  1803,  whether  retrospective,  41. 

Confined  to  city  of  Philadelphia,  Southwark  and  Northern  Liber- 
ties, 48. 

Makes  provision  only  for  case  in  which  owner  is  debtor,  Gl,  125. 

Words  of,  in  defining  debt,  83. 

Names  the  classes  to  which  it  applies,  113. 

Estates  affected  by,  151. 

Commencement  of  lien  under,  1C6. 

Continuance  of  lien  under,  172,  179,  181. 

No  provision  in,  as  to  form  of  claim  or  parties  to  it,  204. 

Koquires  a  claim,  219. 

Contemplates  an  action,  202. 
Act  of  180(1,  how  it  differs  from  that  of  178  I,  32. 

Followed  Ijy  Congress,  'M'>. 

Confined  to  City  and  County  of  Philadelphia,  3(1,  48. 

First  provides  for  case  in  which  owner  is  not  debtor,  01,  C3,  125. 


364  INDEX. 

ACTS    OF    ASSEMBLY— a«^-/i»e(7. 

Did  not  allow  journeymen,  &c.,  to  claim,  77. 
Does  not  only  include  ref^ular  tradesmen,  81. 
"Words  of,  in  defining  debt,  83. 
Names  the  classes  to  which  it  applies,  113. 
Did  not  include  paper-hangers,  &c.,  114. 
Extent  of  lien  under,  138. 
Estate  afifected  by,  151,  &c. 
Commencement  of  lien  under,  1G6. 
Continuance  of  lien  under,  172,  179,  181,  183. 
Effect  under,  of  taking  judgment  bond,  180. 
No  provision  in,  as  to  form  of  claim  or  parties,  204,  205. 
Provision  of,  requiring  a  claim,  219. 
Action  contemplated  by,  2G2. 

Eequires  7)ro  raia  payments  of  proceeds  of  sale,  301. 
Act  of  1808,  followed  by  Congress,  3G. 

Extended  Act  of  1803  to  boroughs  of  Erie,  Lancaster  and 

Pittsburgh,  48. 
Provides  for  contractor,  under  name  of  debtor,  G2. 
Estate  affected  by,  151,  &c. 
Effect  under,  of  taking  judgment  bond,  190. 
Provision  of,  as  to  parties  to  scire  facias,  207,  210. 
Construction  of,  as  to  joint  claims,  249. 
First  Act  that  mentions  a  scire  facias,  2G2. 
As  to  service  of  scire  facias,  under,  262. 
Confines  execution  to  the  building,  297. 
Act  of  1813,  extends  Acts  to  borough  of  Beaver,  48. 
Act  of  1815,  extends  Acts  to  borough  of  ISlarietta  and  Harrisburgh,  48. 
Act  of  1817,  extends  Acts  to  boroughs  of  Reading,  and  Westchester, 
and  towns  of  Alleghany,  Birmingham,  Sydneyville,  Belins- 
town,  Bayardstown,  Lawreuceville  and  Wilkiusburgh,  &c., 
and  to  counties  of  Lancaster,  Montgomery,  York,  Dauphin, 
Franklin  and  Lebanon,  49. 
Act  of  1818,  extends  Acts  to  Cumberland,  Northumberland,  Colum- 
bia and  Beaver,  49. 
Act  of  1821,  extends  Acts  to  Delaware,  Bucks,  Luzerne,  and  MifHin,  50. 
Act  of  1825,  extends  Acts  to  Schuylkill,  Berks,  Erie,  Somerset,  and 

Venango,  50. 
Act  of  1826,  extends  Acts  to  Crawford,  Lycoming,  Centre,  Clearfield 

and  Indiana,  50. 
Act  of  1827,  extends  Acts  to  Union,  50. 
Act  of  1830,  extends  Acts  to  borough  of  Easton,  50. 

Does  not  save  mechanics'  liens,  187. 
Act  of  1831,  extends  Acts  to  Bedford,  Cambria,  Tioga  and 
Armstrong,  50. 
Extends  Acts  to  plumbers,  in  Philadelphia,  115. 
Continuance  of  lien  under,  181. 


INDEX.  365 

ACTS    OF   ASSEMBLY— Com <mi<ef7. 

Provision  of,  as  to  apportionment,  252. 
Act  of  1832,  extends  Acts  to  Chester,  Butler  and  Perry,  50. 
Act  of  1835,  extends  Acts  to  Y^arren,  Juniata,  Washington,  Hunting- 
don, Mercer,  Beaver  and  Alleghany,  50. 
Act  of  April  1,  183G,  extends  Acts  to  Susquehanna,  50. 
Act  of  June  IG,  1836,  is  the  most  perfect,  35. 

Not  retrospective,  41. 

Extended  over  whole  state,  as  it  came  from  Commissionei'S,  51. 

Does  not  include  classes  not  included  by  Act  of  1803,  77,  78. 

Embodied  fruits  of  former  experience,  39. 

Whether  retrospective,  41,  43. 

Construed  by  Act  of  1840,  44,  45. 

Extent  of,  51,  52. 

Extended  to  Lehigh,  52. 

List  of  counties  included  in,  53. 

Extended  t-o  plumbers  and  persons  furnishing  curbstone,  54, 101, 
IIG. 

Mentions  contractor,  62,  125. 

Does  not  embrace  journeymen,  &c.,  77. 

Does  not  only  include  regular  tradesmen,  82. 

Words  of,  in  defining  debt,  83. 

Form  oi  scire  facias  in,  89. 

Construction  of,  as  to  extent  of  lien,  &c.,  90,  93. 

What  classes  can  claim  under,  115. 

Does  not  name  particular  mechanics,  117. 

Commissioners'  report  on,  as  to  extent  of  lien,  1-10,  kc. 

Extent  of  lien  under,  144. 

Mode  of  designating  boundai'ies  under,  1  14,  &c. 

Estate  affected  by,  151,  &c. 

Commencement  of  lien  under,  1G6. 

Continuance  of  lien  under,  172,  179,  181. 

Postponement  under,  on  failure  to  apportion,  185. 

Courts  having  jurisdiction  under,  202. 

Provision  in,  as  to  parties  to  claim,  &c.,  204,  208,  &c. 

Provision  in,  as  to  form  of  claim,  222. 

Apportionment  under,  252,  &c. 

Provides  for  scire  facias,  262,  &c. 

As  to  service  oi  scire  facias,  under,  2G1. 

Provision  in,  requiring  advertisement  repealed,  2G4. 

Provision  in,  compelling  claimant  to  proceed,  2G7. 

Provision  in,  as  to  coming  in  by  suggestion,  270. 

As  to  judgments  for  want  of  adidavit  of  defence,  272. 

Provides  levari  facia.';,  299. 

Provides  mode  of  designating  promises,  300. 

Provides  mode  of  distributing  proceeds,  301. 

Personal  remedy  under,  312, 


366  INDEX. 

ACTS    OF    ASSF.MBLY— Continued. 
Act  of  1838,  extends  early  Acts  to  Bradford,  52. 

Repealed  in  1842,  52. 

Extends  Acts  to  wharf  builders,  86. 
Act  of  1840,  extends  Acts  to  Wayne  and  Fayette,  52. 

Limits  estate  affected,  35,  88,  1)3,  154,  &c.,  IGO. 

What  case  produced  it,  90,  129. 

Whether  retrospective  or  not,  11,  &c. 
Act  of  1841,  extends  Acts  to  Clinton,  Clarion  and  IVI'Kcan,  52. 
Actof  1842,  extends  Acts  to  Bradford,  Monroe,  Greene  and  Dauphin,  52. 

Repeals  part  of  Act  of  1836,  requiring  advertisements,  2G4. 

Regulates  judgment  for  want  of  affidavit  of  defendant,  272. 
Act  of  1843,  extends  Acts  to  Potter  and  Jefferson,  53. 

Extends  Acts  to  plumbers  in  Noi'thamptou,  54,  116. 
Act  of  1844,  extends  Acts  to  Northampton,  53,  54. 

Extends  Acts  to  plumbers  and  furnishers  of  curbstones,  in  Lan- 
caster, 55,  IIG. 
Act  of  1845,  allows  a  lien  in  case  of  special  contract,  36. 

Whether  retrospective,  or  not,  46. 

Annuls  previous  decisions,  69,  &c. 

Does  not  include  journeymen,  78. 

What  case  led  to  its  passage,  123. 
Acts  of  1846,  extend  Acts  to  Pike  and  Adams,  53. 
Act  of  1848,  gives  District  Courts  of  Philadelphia,  Lancaster,  «S;c.,  juris- 
diction over  apportioned  claims  under  §100,  203. 

Requires  several  executions  in  cases  of  apportionment,  301. 
Act  of  1849,  extends  Acts  to  Westmoreland  and  Elk,  53. 

Extends  Acts  to  plumbers,  &c.,  in  Chester,  54,  117. 

Extends  Acts  to  fixtures,  &c.,  about  iron  works,  &c.,  in  Colum- 
bia and  Elk,  55,  86. 

Allows  work  and  materials  to  be  embraced  in  Philadelphia  and 
Chester,  55,  226,  236. 

Extends  Acts  to  paper  hangers,  116. 

As  to  exemption  of  $300,  does  not  apply,  186. 
Act  of  1850,  extends  Acts  to  Carbon,  53. 

Allows  apportionment  of  tvork,  254. 
Act  of  1854,  extends  Acts  to  coal  lease  estates  in  Schuylkill,  55,  87,  93. 

Enlarges  jurisdiction  of  Common  Pleas  of  Philadelphia,  202. 
Act  of  1855,  as  to  continuous  work,  &c.,  of  which  part  is  more  than 
six  months  old,  &c.,  175. 

Allows  a  suggestion  to  bring  in  subsequent  work,  271. 

Provides  for  judgment  for  want  of  affidavit  of  defence,  272. 
Act  of  1856,  extends  Acts  to  fixtures  about  mills,  iron  and  coal  works, 
and  mines,  87. 

ADAMS. 

Acts  extended  to,  53. 


INDEX.  ,367 

ADDITION. 

Whut  is  only,  101. 

Slight  work,  after  interval  or  sheriff's  sale  in,  170. 

Not  a  subject  of  lien,  101,  170. 

ADJOINING. 

What  houses  are,  with  reference  to  apportionment,  256,  &c. 

ADMINISTRATOR. 

No  judgment  against,  for  want  of  affidavit  of  defence,  273. 

ADVERSE   TITLE. 

Not  affected  by  lien,  302,  303. 

ADVERTISING. 

Act  requiring  service  oi  scire  facias  by,  repealed,  264. 

AFFIDAVIT. 

Of  defence,  judgment  for  .jvant  of,  272. 

AGENT. 

How  far  contractor  is,  for  owner,  125,  313. 

AGREEMENT.     See  Contract. 

ALDERMAN. 

Has  no  jurisdiction  under  Acts,  203. 

ALLEGHANY. 

Acts  extended  to  town  of,  48,  49,  50. 

ALTERATION. 

When  work  is  a  mere,  101. 

AMOUNT. 

For  which  claim  may  be  filed,  no  limit  to,  163. 
Generally  filed  for  greater,  than  due,  163. 

APPORTIONMENT.    See  JoixNt  Claims. 
Dift'erent  commencement  in  cases  of,  170. 
Failure  to  make,  postpones,  185,  251). 
To  all  lien  creditors,  185. 
Does  judgment  cure?,  185. 
Jurisdiction  of  courts  in  cases  of,  203. 
In  case  of  houses  owned  by  same  person,  249. 
Where  owners  different,  219. 
Option  as  to,  219,  250. 
Acts  of  18:il  and  1836,  as  to,  252. 
Under  them  only  iu  case  of  materials,  252. 


368  INDEX. 

APPORTIONMENT—  Conthined. 

Act  of  1850,  as  to,  includes  work,  &c.,  254. 
Houses  must  adjoin  for,  256,  &c. 
Main  bouse  and  out-bouscs  not  a  case  for,  258. 
Effect  of  change  of  ownership  as  to,  259. 

APPROPRIATION. 

Of  payments,  l'J3. 

APPURTENANCES. 

Wbat  are  witbin  Acts,  95. 
As  regards  character  of,  as  fixtures  or  not,  95. 
As  regards  distance  of,  from  building,  97. 
Must  tbey  be  described  in  claim?,  215. 

ARMSTRONG. 

Acts  extended  to,  50. 

AUDITOR.     See-DiSTRiBUTiON. 
BARN. 

A  building  witbin  the  Acts,  81,  85,  97. 
Wbat  extent  of  ground  goes  with,  138,  147. 

BATH-HOUSE. 

When  witbin  Acts,  99. 

BAYARDSTOWN. 

Acts  extended  to,  49. 

BEAVER. 

Acts  extended  to,  48,  49,  50. 

BEDFORD. 

Acts  extended  to,  50. 

BELINSTOWN. 

Acts  extended  to,  49. 

BILL 

Annexed  to  claim,  part  of  it,  225,  246. 
But  should  be  referred  to  in  it,  225. 

BIRMINGHAM. 

Acts  extended  to,  49. 

BLACKSMITH. 

Mentioned  in  Acts  of  1803  and  180G,  113. 

BLOCK, 

Of  houses,  what  is,  256. 


INDEX.  369 

BOILER 

la  engine  house,  is  within  Acts,  8-1. 
In  brew-house,  is  within  Acts,  95. 

BOND. 

Taking,  does  not  prevent  lien,  121. 
Taking,  does  not  discharge  lien,  189. 

BOOKS. 

Entries  in,  best  proof  of  credit  to  building,  280,  &c. 

BOUNDARIES 

Of  land  affected  by  lien,  how  ascertained,  144,  &c. 
Not  often  ascertained  under  Act,  148. 
How  ascertained,  for  levari  facias  ^  299. 

BRADFORD. 

Acts  extended  to,  52. 

BREWERY 

Is  a  building  within  the  Acts,  84. 

BRICKLAYER 

Is  mentioned  in  Acts  of  1803  and  1806,  113. 

BRICKMAKER 

Is  mentioned  in  Acts  of  1803  and  180G,  113. 

BRIDGES. 

Acts  extended  to,  55. 

BUCKS. 

Acts  extended  to,  50. 

BUILDING. 

Term  more  comprehensive  than  house,  83. 
Terra  used,  alone,  in  Act  of  183G,  83. 
Church  is  a,  83,  &c. 
Public,  not  within  Acts,  86. 
What  are,  within  Act,  84. 
Lien  not  confined  to,  only,  135. 

BURNING 

Down  of  house,  discharges  premises  from  lien,  199. 

BUTLER. 

Acta  extended  to,  50. 

CAMBRIA. 

Acts  extended  to,  50. 

24 


370  INDEX. 

CARBON . 

Acts  extended  to,  53. 

CARPENTER 

Is  meutioned  in  Act  of  1803,  113. 

CARTER 

Has  no  lien,  7G. 

CENTRE. 

Acts  extended  to,  50. 

CERTIFICATE, 

For  defendant  not  allowed,  297. 

CHANGE 

Of  plan,  does  not  make  a  new  commencement,  1G8. 
Unless,  after  a  long  interval,  168,  169. 

CHATTELS    REAL 

Are  not  within  Acts,  87,  &c. 

CHESTER. 

Acts  extended  to,  50. 

Acts  extended  to  plumbers  in,  54. 

29th  section  of  Act  of  1836,  extended  to,  55. 

CLAIM. 

Early  Acts  imperfect  in  regard  to,  34,  204. 

Liberality  as  to  form  of,  38,  40,  164,  219. 

But  must,  substantially,  comply  with  Acts,  39. 

Has  no  aid  from  statute  of  jeofails,  40. 

Not  amendable,  40,  248. 

Insufficient  notice  from,  164. 

If  defective,  another  may  be  filed,  within  time,  179,  246, 

&c. 
Necessary  to  a  continuance  of  lien,  after  six  months,  179. 
Must  be  filed  within  that  time,  179. 
Parties  to,  204,  &c. 

Name  of  claimant  in,  must  be  mentioned,  204. 
Whether  owner  and  contractor  must  be  named  in,  205,  &c.,  210, 

212. 
Mistakes  as  to  parties  in,  how  far  fatal,  207,  225. 
Filing  of,  \i  ex  parte,  111. 
Is  not  a  record,  221,  246. 
Is  like  registry  of  mortgage,  221. 
Forms  of,  various,  222. 
Design  of,  is  to  give  notice,  222. 
"What  it  must  set  forth,  under  Act  of  1836,  222. 


INDEX.  371 

C  L  A  I  M —  Continued. 

Name  of  claimant  in,  223. 

If  partners  either  individual  names  or  firm  name  in,  22-1. 

Name  of  owner  at  commencement  in,  224. 

Titles,  as  owner  or  contractor  in  not  necessary,  224,  225. 

Nature  or  kind  of  work  and  materials,  225. 

May  be  set  forth  in  a  bill  annexed,  225,  246. 

But  bill  should  be  referred  to  in,  225. 

Work  and  materials  may  be  included  in  same,  226. 

But  must  be  distinguished,  226. 

Unless  both  done  by  contract,  or  only  ascertainable  by  measure- 
ment, 122,  126,  &c. 

Then  must  set  forth  beginning  and  end  of  work,  and  aggregate 
price  of  materials,  227. 

This  under  Act  of  1849,  which  applies  to  Philadelphia  and  Ches- 
ter, 226. 

iTow  the  kind  and  amount,  &c.,  are  to  be  set  forth  in,  227,  &c. 

Must  set  forth  time  when  work  done  and  materials  furnished,  228. 

How  this  time  is  to  be  set  forth  in,  228,  &c. 

How  in  case  of  special  contract,  237. 

Special  contract  need  not  be  referred  to  in,  239. 

Locality  and  size,  &c.,  of  building  in,  240. 

License  as  to  these  in,  240,  241. 

Description  by  metes  and  bounds  in  unnecessary,  240. 

But,  perhaps,  better  to  be  in,  if  can  be  ascertained,  certainly,  241. 

Safer  to  include  too  much,  than  too  little  in,  240. 

License  in  stating  locality  in,  242,  &c. 

Size  and  number  of  stories,  245. 

Necessity  of  setting  forth  character  of  building  in,  245. 

Must  appurtenances  be  described  in?  245. 

Must  a  credit  to  the  building  be  alleged  in?  246. 

Need  not  slate  work  done  "for  or  about  erection,''  &c.,  246. 

May  be  signed  by  counsel,  246. 

Is  not  evidence,  280. 

See  Striking  Off. 

See  Joint  Claims. 

See  Parties. 

CLAIMANT. 

Must  be  mentioned  in  claim,  204,  223. 
And  in  scire  facias,  205. 
See  Claim. 
CLARION. 

Acts  extended  to,  52. 

C  L  E  A  R  F 11-:  L  D  . 

Acts  extended  to,  50. 


372  INDEX. 

CLINTON. 

Acts  extended  to,  52. 

COAL    BREAKER. 

Acts  extended  to,  87. 

COAL   LEASE    ESTATES. 

Acts  extended  to  improvements  on,  55,  87,  93. 

COAL    MINES. 

Acts  extended  to  fixtures  and  macliinery  of,  87. 

COAL   WORKS. 

Acts  extended  to  fixtures  and  machinery  of,  87. 

COLUMBIA. 

Acts  extended  to,  49. 

Acts  extended  to  iron  works,  &c.,  in,  55. 

COMING  IN 

By  suggestion,  270. 

Mode  of,  271. 

Of  mortgagee  to  defend,  217. 

COMMENCEMENT 

Of  lien,  IGG,  &c. 

Is  with  first  work,  166. 

Digging  foundation  is,  166. 

Or  laying  first  stone,  or  timber,  166. 

Change  of  ownership  does  not  make  new,  166. 

Nor  changing  plan,  168. 

Unless  change  is  made  after  a  long  interval,  169. 

Sheriffs  sale  makes  a  new,  if  there  is  a  building  after,  169. 

Not  a  new,  if  work  trivial,  170. 

Then  it  is  extra  work,  for  which  no  lien,  170. 

Different,  in  cases  of  apportionment,  170. 

Unless  all  the  houses  began  together,  170. 

Time  of,  is  not  specified  in  claim,  184. 

Is  a  sul)ject  of  proof  before  auditor,  185. 

Need  not  be  proved  at  trial,  279. 

COMMON  PLEAS. 

Jurisdiction  of,  202. 

Of  Philadelphia,  jurisdiction  of,  202. 

COMPELLING 

Claimant  to  proceed,  267. 
Practice  in,  268. 


INDEX.  373 

CONSTITUTIONAL   QUESTION, 

As  to  retrospective  character  of  Acts,  -40. 

CONSTRUCTION. 

Strict  because  proceeding  statutory,  37. 

Only  strict  as  to  new  applications  of  laws,  37. 

Semhle,  not  as  to  procedure,  37. 

Liberal,  as  to  forms  of  claims,  38,  39. 

Dangers  of  too  great  license  in,  38,  40. 

As  to  retrospective  character  of  Acts,  41,  42,  &c. 

CONTINUANCE 

Of  lien  was,  at  first,  for  two  years,  172. 

Was  without  claim,  172. 

For  six  months,  by  Act  of  183G,  172. 

From  time  of  finishing  work,  or  furnishing  materials,  172. 

How  six  months  of,  calculated,  172. 

Question  for  jury  with  reference  to,  when  work  finished  or  ma- 
terials furnished,  &c.,  172. 

Distinct  debts,  with  reference  to,  if  interval  between  different  works 
or  deliveries,  173. 

Six  mouths  of,  run  from  each  item,  173,  &c. 

Except  in  cases  of  contract,  175,  &c. 

Act  of  1855  saves  as  to,  what  is  older  than  six  months,  175. 

If  done  continuously  with  what  is  within  the  time,  175. 

Treated  as  extra  work,  if  not  continuous  and  no  contract,  177. 

Not  affected  by  defective  claim,  if  time  not  elapsed,  179. 

Not  more  than  six  months,  without  claim,  179. 

Claim  must  be  filed  for,  within  that  time,  179. 

Indefinite,  under  first  Acts,  181. 

Five  years  after  claim,  new,  181. 

By  scire  facias^  every  five  years,  181. 

Though  five  years  elapse  before  judgment  on  the  acire  facias,  182. 

Without  revival  against  proceeds,  183. 

CONTRACT, 

Is  not  impaired  by  Act  of  1810,  only  remedy,  42,  &c. 

Must  have  been  with  owner,  at  first,  125. 

Not  under  later  Acts,  125. 

In  case  of,  work  and  materials  in  same  claim,  220. 

What  averments  in  claim,  as  to,  220. 

Need  not  be  referred  to,  in  claim,  239. 

With  head  contractor  effect  of,  as  to  mechanics,  283. 

See  Special  Coxtkact. 

CONTKACTOU. 

Losses  by,  led  to  the  system,  31. 
Who  he  is,  00. 


374  INDEX. 

CONTRACTO  R—  Continued. 

Not  recognised  by  Act  of  180:^,  CO,  125. 

Existence  of,  prevented  the  lien,  GO,  61. 

How  far  agent  for  owner,  01,  12.3. 

Called  "debtor,"  in  Act  of  1808,  02. 

First  so  called  by  Act  of  1830,  02. 

Made  important  party,  02. 

But  known  in  the  proceeding,  before  1836,  62. 

Held  not  to  be  entitled  to  a  lien,  03,  &c. 

Reasons  for  excluding  him,  07. 

Not  excluded  on  ground  of  contract  merely,  07,  08. 

Has  a  lien  by  Act  of  1845,  09. 

Has  no  lien  against  those  he  employs,  TO. 

For  he  is  their  debtor,  70. 

His  contract  limits  claims  of  others,  72,  73,  &c. 

Non-joinder  of  one  of,  matter  of  abatement,  209,  274. 

Not  a  witness  for  owner,  292. 

Is  witness  for  claimant,  2i)3. 

Is  witness  before  Auditor,  293. 

See  Sub-contractok. 

See  Parties. 

COPY. 

None  filed  to  take  judgment,  272. 
CORPORATION. 

Acts  extended  to  mines,  iron  works,  bridges  and  buildings  of,  55. 

COSTS. 

Cannot  proceed  for,  after  a  sale,  104,  200,  310. 
Are  payable  out  of  proceeds  of  sales,  310. 

COUNTIES. 

No  provision  -where  lands  lie  in  two,  202. 
List  of,  to  which  Acts  extend,  53. 

COURTS. 

See  Jurisdiction. 
See  District  Court. 
See  CoMMOx  Pleas. 
See  Law  axd  Fact. 

CRAWFORD. 

Acts  extended  to,  50. 

CREDIT. 

Work  or  furnishing  must  be  on,  of  house,  117. 
Must  this  be  averred  in  claim?  240. 
Proof  of,  to  house,  283,  kc. 


INDEX.  375 

CREDITORS 

Should  be  protected  by  notice  from  claim,  39. 

CUMBERLAND. 

Acts  extended  to,  49. 

CURBSTONE. 

Acts  extended  to  furnishers  of,  in  Philadelphia,  oi,  101,  IIG. 
And  in  Chester,  54,  117. 
And  in  Lancaster,  55. 

DAUPHIN. 

Acts  extended  to,  48,  49,  52. 

DAY   LABOURER 

Has  no  lien,  76. 

DEBT. 

Nature  of,  secured  by  the  lien,  83,  &c. 

DECLARATION. 

Scire  facias  is,  274. 

DEFENCE. 

Mortgagee  may  take,  217. 

DELAWARE. 

Acts  extended  to,  50. 

DEMURRER 

To  claim  good,  2C0,  274. 
For  variance,  275. 

DESCRIPTION 

Of  land  subject  to  lien,  how  ascertained,  144,  &c. 

License  as  to,  148,  &c. 

Advantage  of  fulness  in,  149. 

How  obtained,  for  levari  facias,  299,  &c. 

DESIGNATION 

Of  amounts  in  cases  of  apportionment,  219. 
Of  boundaries,  see  Boundaries. 

DIFFERENT  COUNTIES. 

No  provision  made  where  lands  lie  in,  202. 

DISCHARGE 

Of  lien,  by  release,  if  delivered,  188. 
Taking  security  not  a,  IHH,  9. 
Taking  note,  bond,  or  judgment  not  a,  189. 
But  time  given  to  contractor  is,  191. 


376  INDEX. 

DISC  H  AUG  Y.— Continued. 
By  estoppel,  197. 
By  sheriff's  sale,  197. 
By  burning  of  house,  197. 
Not  by  tearing  it  down,  199. 

DISCONTINUANCE. 

New  scire  facias  in  case  of,  2G4. 

DISTILLERY 

Is  a  building  within  the  Acts,  84. 

DISTRIBUTION 

Of  proceeds  of  sheriff's  sales,  304. 
Auditor  usually  makes,  305. 
Who  may  object,  in  case  of,  305. 
Issue  in,  if  necessary,  306. 

DISTRICT   COURT 

Of  Philadelphia,  jurisdiction  of,  202,  203. 
Of  Lancaster  and  Allegheny,  203. 

EASTON. 

Acts  extended  to,  50,  54. 

ELK. 

Acts  extended  to,  53. 

Acts  extended  to  iron  works,  &c.,  5o. 

ENGINE   HOUSE 

Is  a  building,  within  the  Acts,  84. 

EQUITABLE   ESTATE. 

See  Estate. 

ERECTION  AND  CONSTRUCTION. 

What  is,  101,  &c. 

When  they  are  a  mere  addition,  101,  &c. 

ERIE. 

Acts  extended  to,  48. 

ESTATE 

In  fee  formerly  bound,  35,  150,  &c. 

Though  building  were  by  tenants  for  life,  or  owner  of  equitable 

estates,  35,  150,  &c. 
This  changed  by  Act  of  1840,  35,  IGO. 

Lien  confined  by  it  to,  of  person  in  possession,  &c.,  35,  IGO. 
For  years,  not  within  Acts,  since  1840,  87,  88,  &c. 
Of  coal  lease,  improvements  on,  55,  87. 
Owner  of  what,  can  pledge  credit  of  building  bound,  128, 150,  &c. 


INDEX.  377 

EST  ATE— Continued. 

Formerly,  of  any  one  in  possession  who  built,  129,  150,  &c. 

Of  tenant  for  life,  owner  of  equity,  &c.,  129,  150,  &e. 

Not  of  trespasser,  129. 

Nor  of  Insurance  Company,  building  under  policy,  130,  159. 

Act  of  1840  has  changed  this,  129. 

Where  legal,  acquired,  relation  back,  IGl. 

Eight  of  lessee  to  purchase  in  fee,  effect  of,  as  to,  IGI. 

ESTOPPEL. 

Lien  discharged  by,  197. 

EVIDENCE 

On  trial  of  scire  facias,  279. 

Of  facts  of  erection,  &c.,  279. 

Of  commencement,  unnecessary,  279. 

Of  names  and  characters  of  parties,  and  their  relations,  279. 

Of  contract  of  chief  contractor,  280. 

Of  doing  work  or  furnishing  materials,  280. 

Claim  is  not,  280. 

Books  of  original  entry,  when,  280. 

Allegata  and  probata,  280,  &c. 

How  far  variance  of,  fatal,  281. 

To  supply  omissions  and  correct  mistakes,  281. 

As  to  amount,  need  not  correspond,  exactly,  281,  282. 

Of  time,  282. 

As  to  locality,  how  far  may  vary,  282,  283. 

Of  special  contract,  must  be  given,  283. 

Of  contract  by  contractor,  how  far  binds  owner,  283. 

Of  credit  to  building,  283,  &c. 

Best,  of  credit,  is  charge  to  house  on  books,  283,  284,  &c. 

But  entry  on  books  not  necessary  as,  286. 

Other,  allowed,  28G. 

Of  work  on  house,  28G. 

Or  of  delivery  at,  286. 

Of  use  in,  286. 

Of  actual  use,  not  indispensable,  287. 

Showing  fraud,  289. 

As,  of  knowledge,  that  more  than  enough  is  furnished,  2S9. 

Or,  of  delivery  at  inconsistent  time,  292. 

Of  special  contract,  effect  of,  292. 

Of  note,  bond,  or  security,  292. 

Of  filing  within  six  mouths,  292. 

Ski-;  Wnxtss. 

EXECUTION. 

Materials  not  subject  to,  against  contractor,  132. 
Form  of  given  in  Act,  299. 


378  INDEX. 

EXECUTIO  N—Contlmicd. 
By  levari  facias,  299. 
Description  for,  how  obtaincil,  299. 
Several,  iu  case  of  apportionment,  300. 

EXEMPTION    ACT. 

Mechanic's  liens  not  affected  bj,  186,  303. 

EX   POST    FACTO 

Construction,  danger  of,  41,  42. 

EXTENT 

Of  the  Acts  has  increased,  36. 

Is  now  over  almost  the  whole  state,  36. 

Of  lien,  as  respects  ground,  135,  «tc. 

Not  confined  to  house,  135,  &c. 

Nor  to  ground  covered  by  house,  135,  &c. 

Reaches  to  other  ground  necessary  and  useful,  144. 

See  report  of  Commissioners  as  to,  140,  &c. 

Mode  of  ascertaining,  under  Act,  144. 

EXTRA    WORK 

Is  not  a  subject  of  lien,  170. 
What  is,  177. 

FACT. 

See  Law  axd  Fact. 
See  Jury. 

FACTORY 

Is  a  building  within  the  Acts,  84. 

FAYETTE. 

Acts  extended  to,  52. 

FEE    SIMPLE. 

See  Estate. 
FENCE. 

Whether  within  Acts,  100. 

FILING. 

See  Claim. 

FINISHING 

Work,  what  is,  173,  &c. 

Time  of,  is  question  for  jury,  172. 

Each  distinct,  a  separate  debt,  173. 

Where  work  is  done  under  one  contract,  175,  &c. 

Where  work  is  done  continuously,  under  Act  of  1855,  175. 

Extra  work  not  a,  177. 


INDEX. 

FIRE 

Discharges  lien  when,  197. 

FIXTURES 

Of  coal  lease  estates,  Acts  extended  to,  55. 

About  iron  works,  and  mines,  ao. 

What  about  a  building,  are  within  Acts,  95,  &c. 

"FOR   OR   ABOUT." 

AVhen  work  is  done,  or  materials  furnished,  120. 

FORMER   RECOVERY 

Is  a  defence,  278. 

FOUNDATION. 

Digging,  is  commencement,  16G. 

FRANKLIN. 

Acts  extended  to,  4:9. 

FRAUD 

In  furnishing,  a  defence,  289,  &c. 

As,  in  case  of  knowledge  that  too  much  is  furnished,  289. 

FURNACE 

Is  a  building  within  the  Acts,  84,  97. 
Those  furnishing,  have  lien,  117. 

FURNISHING 

Materials,  what  is,  173. 

Time  of,  question  for  a  jury,  172. 

Each,  a  distinct  debt,  173. 

Except  in  cases  of  contract,  175. 

Or  where  is  continuous  under  Act  of  1855,  175,  ic. 

GAS   FITTER 

Has  the  lien,  117. 

GIVING   TIME 

To  contractor,  discharges  owner,  190,  &c. 

GLAZIER 

Is  mentioned  in  Act  of  1803,  113. 

GRATES. 

Those  furnishing,  have  liens,  117. 

GRAVEYARD 

Is  not  embraced  in  lien  against  church,  14C. 

GREENE. 

Acts  extended  to,  52. 


380  INDEX. 

GROUND. 

How  much  affected,  137,  &c. 
Sec  ExTEXT, 

GUxVRANTEE 

Of  third  person,  does  not  deprive  of  lien,  121. 

HARRISBURCr. 

Acts  extended  to,  48. 

HIRING 

By  the  day  does  not  forbid  lien,  80. 

HISTORY. 

No  precedent  for  the  sj^stem,  here  or  in  England,  33. 

Similarity  of  Act  of  1784,  as  to  work  on  vessels,  33. 

Origin  of  mechanics'  lien  law,  doubtful,  33. 

Long  continued  regard  for  mechanics,  34. 

Losses  by  contractors  led  to  the  Acts,  34. 

Early  defects  of  the  system,  34,  35. 

Act  of  183G,  most  perfect,  35. 

Change  by  Act  of  1840,  as  to  the  estate  affected,  35. 

Change  by  Act  of  1845,  as  to  cases  of  a  contract,  35,  36. 

Our  system  adopted  by  Congress,  &c.,  38. 

System  has  extended  over  most  of  our  own  state,  3G. 

HOD  CARRIER 

Has  no  lien,  7G. 

HOISTING  GEARING 

About  mills,  iron  and  coal  mines,  and  works,  within  Acts,  87. 

HUNTINGTON. 

Acts  extended  to,  50. 

ICE   HOUSE. 

Semhle,  not  within  Acts,  85. 

Contra,  97. 

Is,  if  attached  to  main  house,  89,  101. 

IMPROVEMENTS 

On  coal  lease  estates.  Acts  extended  to,  55. 

INDIANA. 

Acts  extended  to,  55. 

IN  PERSONAM. 

Not  a  proceeding,  lu4,  200. 
See  Persoxal  Remedy. 


INDEX.  381 

IN  REM. 

Strictly  a  procccdinjj,  1G4,  200. 

INSURANCE  COMPANY. 

Building  by,  under  policy,  not  within  Acts,  130,  159. 

IRON  MINES. 

Acts  extended  to  fixtures  and  machinery  of,  87. 

IRON   MONGER 

Is  mentioned  in  Act  of  1803,  113. 

IRON  WORKS. 

Acts  extended  to  fixtures  of,  55,  87. 

IRREGULARITIES 

In  proceedings,  when  cured  by  judgment,  298. 

ISSUE 

Under  proceedings  to  compel  claimant  to  go  on,  268. 
Will  be  directed,  if  necessary,  in  distribution,  30G. 

JEFFERSON. 

Acts  extended  to,  53. 

JOINT   CLAIMS 

Cannot  be  filed  against  houses  owned  by  different  persons,  249, 

255. 
May  be  filed  where  houses  owned  by  one  person,  219. 
Held,  contra,  formerly,  249. 

Allowed  to  be  apportioned  by  Acts  of  1831  and  183G,  252. 
Should  aver  joint  ownership,  253,  259. 
First  Acts  in  regard  to,  applied  only  to  materials,  254. 
Act  of  1850  allows  in  case  of  work,  254. 
Houses  must  adjoin  to  allow  of,  256,  &c. 
Act  as  to,  does  not  apply  to  main  house  and  out-houscs,  258. 
Should  aver  that  houses  adjoin,  259. 
Effect  of  change  of  ownership  as  to,  259. 
If  no  apportionment  in,  claimant  postponed,  259. 

JOURNEYMAN 

Has  no  lien,  7G. 

JUDGMENT. 

Entering  a,  does  not  prevent  Hen,  121. 
Nor  docs  taking,  discharge  lien,  189. 
For  want  of  aflidaviL  of  defence,  272. 
No  copy  filed  for,  272. 
Eflfect  of,  298. 


382  INDEX. 

J  U  D  G  M  E  X  T— Continued. 

Protects  from  certain  objections,  305. 

But  before,  other  creditors  may  object  to  claim,  &c.,  305. 

JUDICIAL   EXPOSITION. 

Effect  of,  44,  &c. 

JUNIATA. 

Acts  extended  to,  50. 

JURISDICTION 

Of  courts,  202.  &c. 

In  cases  of  apportionment,  203. 

JURY. 

Time  of  finishing  work  and  furnishing  materials  a  question  for, 

172. 
See  Law  and  Fact. 

KITCHEN, 

Is  a  building  within  Acts,  84. 

LABOURER. 

See  Day  LAUorRER. 

LANCASTER. 

Acts  extended  to,  48,  49. 

Acts  extended  to  plumbers,  &c.,  in,  55. 

LAND 

Is  bound  as  well  as  building,  135. 
How  much,  is  bound,  137,  A;c. 

LAW    AND    FACT. 

What  are  questions  of,  295. 

LAWRENCEVILLE. 

Acts  extended  to,  49. 

LEBANON. 

Acts  extended  to,  49. 

LEHIGH. 

Acts  extended  to,  52. 

LESSEES 

Of  coal  estates.  Acts  extended  to,  55,  87. 
For  years,  no  lien  against,  87. 

With  right  to  buy  in  fee,  have  equitable  estates,  and  are  within 
Acts,  94. 


INDEX.  383 

LEVY 

On  term  will  not  pass  a  fee,  158. 

LIEN  CREDITORS. 

See  Creditors. 

LIFE   ESTATE. 

Tenant  of,  could  bind  reversioner,  128. 
And  remainder-men,  128. 
Not  since  Act  of  1840,  128. 

LIME   MERCHANT 

Is  mentioned  in  Acts  of  1803  and  1806,  113. 

LOCALITY 

Of  building,  liow  averred  in  claim,  240,  &c. 
See  Claim. 

LOT. 

See  Land. 

LUMBER  MERCHANT 

Is  mentioned  in  Acts  of  1803  and  1806,  113. 
LUZERNE. 

Acts  extended  to,  50. 

LYCOMING, 

Acts  extended  to,  50. 

MACHINERY. 

Acts  extended  to,  of  coal  lease  estates,  55. 
About  mills,  iron  or  coal  mines  or  works,  87. 

MARIETTA. 

Acts  e.xtended  to,  48. 

MASON 

Is  mentioned  in  Acts  of  1803  and  1806,  113. 

MASTER  MECHANIC,  OR  MATERIAL  MAN 

Has  a  lien,  75. 

Hard  to  distinguish  them  from  suljordinates,  who  have  no  lien,  75. 

Payment  by  the  day  to,  no  test,  75,  76. 

MATERIALS 

Need  not  be  used,  117,  &c.,  131. 

Are  they  bound  if  not  used?  131,  132,  133. 

How  levied  on,  133. 

MATERIAL   MAN 

Need  not  be  a  regular  tradesman,  81,  &-c. 


384  INDEX. 

MECHANICS 

Need  not  be  in  regular  employment  to  have  lien,  84. 

jm  e  r  c  1-:  11 . 

Acts  extended  to,  50. 

METES  AND  BOUNDS 

Of  land  bound  by  lien,  how  ascertained,  144. 
Latitude  allowed  as  to,  149. 
Need  not  be  stated  in  claim,  240. 
But  better  to  state  them,  241. 

MIDDLE    MAN. 

See  CoXTRACTOR. 

MIFFLIN. 

Acts  extended  to,  50. 

]M  I L  L  S . 

Are  buildings,  within  the  Acts,  84. 
Acts  extended  to,  of  all  kinds,  87. 

MILLSTONES 

Are  within  Acts,  9G. 

MINES. 

Acts  extended  to,  55. 

MISTAKE 

In  parties,  when  fatal,  207,  208,  212. 
How  far,  helped  by  proof,  281,  &c. 

M'  K  E  A  N  . 

Acts  extended  to,  52. 

i^I  0  N  T  G  0  ]M  E  R  Y . 

Acts  extended  to,  49. 

MORTGAGEE. 

May  come  in  and  take  defence,  217. 
See  Purchaser. 

]M  0  T 1 0  N 

To  strike  off,  260. 
Favoured,  2(j0. 

MUNICIPAL    LIENS. 

Resemblance  of,  to  mechanics'  liens,  10.3. 

NON   ASSUMPSIT 

Is,  frequent  plea,  2VG. 

Bad,  in  case  of  special  contrjict,  27G. 


INDEX.  385 

NON   JOINDER 

Of  one  eoutractor,  is  matter  in  abatement,  20G,  274. 

NONSUIT. 

See  case  of  new  scire  facias  after,  264. 

Cannot  be  sutFered,  after  proceeding  to  compel  claimant  to  go 
on,  208. 

NORTHAMPTON. 

Acts  extended  to,  50,  5.1,  54. 

NORTHERN   LIBERTIES 

Are  embraced  by  Act  of  1803,  41. 

NORTHUMBERLAND. 

Acts  extended  to,  49. 

NOTE. 

Taking  does  not  prevent  claim,  121. 
Does  not  discharge  lieu,  189. 

NOTICE. 

None  of  lien,  until  claim  filed,  l(i3. 
Except  from  bouse,  1G4. 
See  Service. 

"NUL   TIEL  RECORD" 

Is  a  bad  plea,  275. 

ODD   FELLOWS'   LODGE, 

A  building  within  the  Acts,  85. 

ORDER. 

Form  of,  in  compelling  claimant  to  proceed,  268. 

ORIGIN. 

See  History. 

ORIGINAL  ENTRIES, 

Best  proof  of  credit  to  building,  280,  &c. 

OUT-HOUSES. 

What  are,  within  Acts,  85. 
No  apportionment  as  to,  258. 

OWNER 

Has  no  lien  against  creditors,  58,  59. 

May  purchase  a  lien,  GO. 

By  Act  of  IHO."),  contract  must  have  been  witli,  125. 

Whether  contractor  is  agent  of,  125. 

Is  surety  for  contractor,  191. 

25 


386  INDEX. 

0  W  N  E  R—  Continued. 

Not  bound,  personally,  200. 

Bound  if  he  is  contractor,  200. 

At  commencement,  sufficient  for  claim,  214,  22-1. 

At  time  work  done,  or  claim  filed,  also  proper,  216,  224. 

Title  of,  as  such,  not  necessary,  224. 

Is  not  a  witness  for  co-owner,  293. 

Unless  at  trial,  he  has  ceased  to  be  such,  293. 

See  Parties. 

See  Claim. 

OWNERSHIP. 

Change  of,  does  not  make  new  commencement,  16G. 
ConirUj  in  case  of  Sheriff's  sale,  1G8. 
Effect  of  different,  on  right  to  apportion,  249,  &c. 
Effect  of  change  of,  259. 

PAINTER 

Is  mentioned  in  Act  of  1803,  113. 

PAPER  han(;er 

Is  not  within  early  Acts,  113. 
Is  within  Act  of  183G,  115. 

PARTNERS 

Taken  subsequently  to  contract,  not  proper  claimants,  204. 

Firm  name  of,  sufficient,  224. 

Or  individual  names  oi".  only,  224. 

PARTY. 

Who  must  be;  204,  &c. 

Claimant  must  be,  204,  223. 

To  claim  and  scire  facias,  205. 

Whether  owner  and  contractor  must  be,  205,  &c. 

Semble,  they  need  not  have  been,  to  claim  under  early  Acts,  205, 

210. 
But  in  practice  they  were,  207. 
And  under  Act  of  183G,  must  be,  208,  212. 
Mistake  as  to,  in  claim,  207. 
To  scire  facias,  contractor  must  be,  207,  &c. 
And  owner,  where  he  is  contractor,  20^,  &c. 

How,  where  owner  not  contractor,  210,  &c. 

Owner  or  reputed  owner  is,  210. 

Act  of  183G  requires  him  to  be,  211. 

Reputed  owner,  where  owner  not  known,  212. 

If  named  and  mistake  in,  212. 

If  wrong  named  defence  may  be  made,  213. 

Importance  of  correctness  as  to,  in  case  of  apportionment,  214. 


INDEX.  387 

P  A  E  T  Y—  Continued. 

Owner  when  building  commenced,  is  proper,  214,  &c. 
SemhJe  owner,  when  work  done  or  materials  furnished,  216,  &c. 
Mortgagees  may  come  in  as,  217. 
See  Evidence. 

PAVEMENT. 

Curbstones  for,  within  Acts,  101. 

PAYMENT. 

IMode  of",  no  test  of  right  of  lien,  80,  &c. 

By  the  day  does  not  prove  the  subordinate,  80,  &c. 

In  lumber,  does  not  affect  right  to  lien,  121,  124:. 

Appropriation  of,  193,  &c. 

Usual  plea,  276. 

Effect  of  plea  of,  278. 

PERRY.       ~ 

Acts  extended  to,  50. 

PERSONAL   REMEDY. 

Act  of  1836,  as  to,  312. 

Lien  does  not  stand  in  way  of,  312. 

Xone  against  owner,  unless  he  is  contractor,  312. 

PERSONALTY. 

If  an  estate  be,  not  within  lYcts,  87. 

PETITION 

To  strike  off  claim,  260. 

To  compel  claimant  to  proceed,  268. 

PHILADELPHIA. 

Act  of  1803,  confined  to,  &c.,  48. 

Act  of  180G  embraced,  48. 

Law  to  apply  to  plumbers,  &c.,  in,  54. 

Mechanics  in  may  include  both  work  and  materials,  j^i. 

V I K  E . 

Acts  extended  to,  53. 

PITTSBURGH. 

Acts  exteuded  to,  48. 

PLASTERER 

la  mentioned  in  Act  of  1803,  113. 

PLEADINGS 

Under  proceedings  to  compel  claimant  to  go  on,  268. 
Hcire  facias,  is  declaration,  27  I. 


388  ixDEX. 

PLEADING  S—  Continued. 

Non-joinder  of  one  of  two  contractors,  mailer  of  abatement,  209, 

27-t. 
Demurrer  allowed  to  clainij  2 71. 
';Xo  lien"'  bad,  2V-1. 
''JN'mZ  tiel  record^'''  bad,  275. 
Semble  demurrer  for  variance  between  scire  facias  and  claim  is 

good,  275. 
Usual,  on  non  assumpsit,  payment,  set' off,  &e.,  27G. 
Xon  assumpsit  bad,  in  case  of  specialty,  276. 
Special  pleas  common,  276. 
Instances  of,  275,  277,  278. 
Pavment,  effect  of,  278. 
Contractor  may  plead  set  off,  278. 
Former  recovery,  278. 

PLEDGE. 

Who  may,  the  building,  125,  &c. 

PLUMBERS. 

Acts  extended  to,  in  Philadelphia  and  Chester,  54. 

And  in  Lancaster,  55. 

Held  not  within  early  Acts,  113. 

Act  of  1831,  as  to,  in  Philadelphia,  115. 

Act  of  1836,  as  to,  116. 

POLICY 

Of  system  doubtful,  36. 

POSTPONEMENT 

Bv  failure  to  apportion,  185. 
Is  to  all  liens,  in  such  case,  185. 

POTTER. 

Acts  extended  to,  53. 

PRESUMPTION 

In  favour  of  proceedings  after  verdict  and  judgment,  297. 

PRINCIPAL 

Only  of  each  trade,  has  lien,  76,  &c. 
Not  subordinates,  76,  &c. 

PRIORITY 

Of  Hen,  184. 

Lien  has,  over  judgment,  even  for  purchase  money,  if  not  entered. 

184. 
Lien  has,  over  aU  others  after  commencement,  154. 


INDEX.  389 

P  R  I Y  Y 

Not  within  Acts,  85. 
Contra,  99. 

PROCEEDS 

Of  Sheriff's  sale,  claim  need  not  be  filed  against,  1S2,  183. 
Liens  payable  out  of,  187. 

PRO  RATA. 

Contractor  cannot  divide,  with  mechanics,  70. 
Creditor  paid,  if  not  enough  for  all,  185. 

PUBLIC   BUILDINGS 

Not  subject  to  lien,  86. 

PUMP   GEARING 

About  mills,  iron  or  coal  works  or  mines,  v.itliiu  Acts,  87. 

PURCHASERS 

Should  be  protected  by  form  of  claim,  39. 
Retroactive  effect  of  Act  of  1845  as  to,  4G. 
Should  inquire  for  liens,  if  house  newly  erected,  1G4. 

READING. 

Acts  extended  to,  49. 

RECORD. 

Claim  is  not,  221. 

RELATION   BACK. 

Lien  has,  to  commencement,  185. 

Where  owner  of  equity  acquires  legal  estate,  184. 

RELEASE 

Discharges  lien,  188. 

REMEDY 

Alone  affected  by  Act  of  1840,  42,  &c. 

REPAIR. 

AVhen  work  is  only,  101,  &c. , 

REPUTED   OWNER. 

See  Party. 

RETROSPECTIVE   ACTS. 

See  Acts  of  Asskmbly,  40,  &c. 

REVERSIONERS. 

Estates  of,  bound,  under  early  Acts,  128. 
Not  since  Act  of  1840,  128. 

26 


390  INDEX. 

ROPE    WALK. 

Claim  filed  against,  97. 

SALE 

Discharges  mechanic's  liens,  301. 
See  Sueriff's  Sale, 

SAW-MILL. 

Steam  engine  in,  is  within  Acts,  i)G. 
What  ground  is  appurtenant  to,  146. 

SCHOOL   HOUSE 

Is  a  building  within  the  Acts,  84. 

SCHUYLKILL. 

Acts  extended  to,  50. 

Ieipi"ovements  on  coal  lease  estates  in,  55. 

SCIRE   FACIAS. 

Claim  revived  by,  183. 

Early  Acts  as  to,  262. 

Form  of.  given  in  Act  of  1836,  262. 

Several,  in  case  of  apportionment,  263. 

Parties  to,  263. 

Service  of,  264,  &c. 

Is  sufficient  declaration,  274. 

See  Party. 

SERVICE 

Of  scire  facias,  264,  &c. 

SET   OFF. 

Debt  due  to  contractor  may  be,  193. 
Usual  plea,  276. 
Contractor  may  plead,  278. 

SHERIFF'S    SALE. 

Eflect  of,  to  make  a  new  commencement,  169. 

Necessity  of  filing  a  claim  after,  182. 

Does  six  months  run  against  proceeds  of?,  182. 

Discharges  liens,  187,  197,  301. 

Unless  otherwise  agreed,  302. 

Stops  all  further  proceedings,  302. 

Quere,  if  defective  title  sold,  308. 

Does  not  affect  adverse  title,  303. 

Exemption  Act,  does  not  apply,  in  case  of.  303. 

SIX    MONTHS. 

"When  begin  to  run,  172,  &c. 


INDEX.  391 

SIX    MONTHS—  Continued. 
Is  question  of  fact,  172. 
See  CoxTixuANX'E. 

SMOKE    HOUSE. 

Semhie  not  within  Acts,  85. 

SOMERSET. 

Acts  extended  to,  50. 

SOUTHWARK 

Is  embraced  by  Act  of  1803,  48. 

SPECIAL   CONTRACT 

Effect  of,  on  right  to  a  lien,  120. 
Held,  at  first,  did  not  prevent  lien,  120. 
Contra,  afterwards,  122. 
Then  Ac^  of  1845,  123. 

STABLE. 

Senible,  not  within  Acts,  85. 
Contra,  97, 

STATEMENT 

Eequired  under  proceedings  to  compel  claimant  to  proceed,  2G8. 

STEAMBOAT 

Not  within  Acts,  95. 

STEAM  ENGINE 

About  mills,  iron  or  coal  works  or  mines,  within  Acts,  87. 
To  propel  saw-mill,  held  within  Acts,  9G. 

STONECUTTER 

Mentioned  in  Act  of  1803,  1 13. 

S  T  0  R  ]=: 

lo  a  building  within  the  Acts,  84. 

STORIES. 

Number  of,  how  stated  in  claim,  245. 
STRIKING  OFF 

Claims,  200. 

How  done,  200. 

Saves  costs,  &c.,  200,  &c. 

S  U  B  -  C  O  N  T  R  A  C  1'  0  R 

Has  been  held  to  have  no  lien,  08,  &c. 
Contra,  hy  Act  of  1815,  09. 


392  INDEX. 

SUB-CONTRACTOR—  Continued. 

Rifrlit,  as  against  owner,  restrained  by  chief  contract,  72. 

Is  "substitutionary"  to  contractor,  73. 

Does  Act  of  1815  apply  to,  124. 

Can  pledge  credit  of  building,  125,  &c. 

See  COXTKACTOR. 

SUBJECT 

Of  tl^  lien,  131,  &c. 

SUBORDINATES 

Have  no  lien,  7G,  &c. 

SUGGESTION. 

Coming  in  by,  270. 
Mode  of,  271 

SUMMONS. 

Scire  facias,  served  like,  264. 

SURETY. 

Owner  is  for  contractor,  191. 

SUSQUEHANNA. 

Acts  extended  to,  50. 

SYDNEYVILLE. 

Acts  extended  to,  49. 

TAN-HOUSE 

Is  a  building  within  Acts,  84. 

TEARING  DOWN 

House  does  not  discharge  lien,  197. 

TENANT  FOR  LIFE. 

See  Life  Estate. 

TENANT 

Of  coal  lease  estates,  Acts  extended  to,  55. 
See  Estate. 

TEN  PIN   ALLEY 
Is  within  Acts,  100. 

THEATRE 

Is  a  building  within  the  Acts,  84. 
Stage  and  scenery  of,  9G. 

TIME. 

With  reference  to,  whether  work  is  done  in  erecting  and  construct- 
ing. 111. 


INDEX.  39) 

TIM'E—Confinued. 

What  lengtli  of,  allowed  after  main  work,  111. 
Statement  of,  iu  claim,  228,  &c. 

TIOGA. 

Acts  exteuded  to,  50, 

TOWNS 

Xear  Pittsburgh,  Acts  extended  to,  49. 

TRADE, 

Need  not  have  regular  trade  to  be  within  Acts,  SI,  62, 

TRESPASSER. 

Building  by,  not  within  Acts,  129,  159, 

"TRIAL. 

See  Evidence, 
See  Nonsuit. 

UNION. 

Acts  extended  to,  50, 

USE 

Of  materials,  not  necessary  to  give  lien,  117,  &c. 

VARIANCE. 

Demurrer  for,  between  scire  facias,  and  claim,  275. 
Between  alkdaia  and  jyrobaU^  286. 

VENANGO. 

Acts  extended  to,  50, 

VERDICT 

Does  not  find  commencement  of  building,  297. 
Certificate  for  defendant  iu,  not  allowed,  297. 
Effect  of,  297. 

WAGON   SHED 

Is  within  Acts,  97. 

WARE    HOUSE 

Is  within  Acts,  84. 

WARREN. 

Acts  extended  to,  50. 

WASH   HOUSE 

Is  within  Acts,  79. 
When  ?  99. 

WASHINGTON. 

Acts  extended  to,  50. 


394  ix\DEx. 

WAYNE. 

Acts  extended  to,  52. 

WEST    CHESTEK. 

Acts  extended  to,  -19. 

WESTMORELAND. 

Acts  extended  to,  53. 

WHARF  BUILDERS 

Are  within  Acts,  8(j. 

WILKINSBURGH. 

Acts  extended  to,  46. 

WITNESS. 

Contractor  is  not,  for  owner,  292. 

Effect  of  release  upon,  293. 

Contractor  is,  for  claimant,  293. 

And  before  Auditor,  293. 

Owner  not,  for  co-owner,  293. 

Owner,  at  trial,  not  for  owner  when  claim  filed,  293. 

Owner  before  may  be,  if  not  at  trial,  293,  4. 

WOOD  HOUSE 

Is  within  Acts,  97,  99. 

WORKMEN. 

Subordinate,  have  no  lien,  7C,,  «&c. 

YORK. 

Acts  extended  to,  49. 


THE  END. 


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